Courtier and Courtier

[2008] FamCA 367

FAMILY COURT OF AUSTRALIA

COURTIER & COURTIER [2008] FamCA 367

FAMILY LAW – CHILDREN – Sole parental responsibility

Family Law Act 1975 (Cth)

APPLICANT: Ms Courtier

RESPONDENT: Mr Courtier

INDEPENDENT CHILDREN’S LAWYER: Hale & Wakeling

FILE NUMBER: MLF 1890 of 2005

DATE DELIVERED: 23 May 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Carter J

HEARING DATES: 19 January 2007
16 April 2007
20 July 2007
14 September 2007
12 December 2007
28 February 2008

REPRESENTATION

APPEARANCE FOR THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Ms Birkett via telephone link

APPEARANCE FOR THE INDEPENDENT CHILDREN’S LAWYER : Mr Hale

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER Hale & Wakeling

Orders

1. That the procedural orders made in Chambers on 14 December 2007 be discharged.

2. That the mention date of 9:30am 16 April 2008 be vacated.

3. That the hearing date of 12 May 2008 be vacated.

4. That the children C and J born …May 1994 live with the father and he have sole parental responsibility for the said children.

5. Save as aforesaid outstanding applications be dismissed and removed from the list of cases awaiting determination.

6. That my Reasons for Judgment be provided to all parties as soon as practicable.

7. That the appointment of the Independent Children’s Lawyer be discharged one month after Reasons for Judgment have been published.

8. That 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 Courtier & Courtier is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1890 of 2005

MS COURTIER

Applicant

and

MR COURTIER

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 28 February 2008 I make orders in relation to twins, C and J, both born in May 1994.  The effect of those orders, when looked at in the light of earlier orders of the Court is that the children will continue to live with their father who will have sole parental responsibility for them.  Should she wish to do so and in the event that the appropriate arrangements are made, the mother will spend supervised time with the children at a contact centre.  The time will be spent on such dates as the centre may be able to provide;  at the mother’s expense;  but no more frequently than twice each calendar month.

2. The mother did not attend Court on the day these orders were made and indeed had earlier discontinued certain applications.  The orders which were made, were made with the consent of the father and the Independent Children’s Lawyer (“I C L”).

3. These are the Reasons for the orders which were made.

Background

1. Ms Courtier (“the mother”) was born in December 1955.

2. Mr Courtier (“the father”) was born in February 1963.

3. The father is a public servant and, as I understand it, the mother is engaged in home duties.

4. The father and the mother had a relationship from 1992 (according to the father) or 1993 (according to the mother).  It is not necessary in the circumstances to resolve this difference.  Final separation took place in 2005.  I am aware that the mother deposed in earlier material that separation took place in 2000, however that does not accord with information she provided to various other people and at other stages throughout these proceedings.

5. The children were both born in May 1994 and they initially remained with the mother following separation.

6. The twins were placed in the father’s care in May 2005 at a time when the mother had allegedly been expressing suicidal threats.  She had been admitted to the Maroondah Hospital, Psychiatric Unit, and stayed there for some ten days.

7. The mother commenced proceedings when she caused to be filed applications seeking both final and interim orders.  The applications were filed on 8 June 2005 and one of the orders which she had sought was a Recovery Order.

8. It will be convenient to refer to the “old” parenting terms current at the time earlier orders were made prior to the introduction of new terminology in the Family Law Amendment (Shared Responsibility) Act 2006.

9. The proceedings came before Ramsden JR on 9 June 2005.  The father appeared in person and the mother was legally represented.  The proceedings were adjourned to 30 June 2005.  The Judicial Registrar ordered that the twins be separately represented and made an order for conciliation counselling.  Directions were made for the father to file answering material and interim arrangements were made by consent, which specified the times that the girls were to spend with both their parents.  It was a condition of the mother’s contact with the twins that it be supervised on all overnight periods and with substantial attendance during daylight hours.

10. On 30 June 2005 Brown J made certain orders by consent.  The father and the mother were both legally represented and the child representative appeared.  The proceedings were further adjourned until 13 September 2005 in anticipation of the preparation of a Family Report which was also ordered by her Honour.  All previous parenting orders were discharged and it was ordered that the children live with their father at all times other than on alternative weekends during the school terms and for half of each of the school term vacations.  Arrangements were also made for the children to be with the mother on occasions such as birthdays and other special occasions and they were also to have telephone contact with her each week.  It was ordered that the times when the children were with their mother were to be supervised, the supervisor to be in substantial attendance, with certain requirements being placed upon the supervisor for the purposes of protecting the welfare of the children.

11. There were other conditions and orders made which I need not detail.

12. The father, mother and children attended upon Ms M, a forensic psychologist who prepared a report dated 30 August 2005.  That report is annexed to an affidavit sworn or affirmed by Ms M and filed 26 September 2005.

13. Ms M recommended that the children return to live with their mother at the end of the then current school term and that this be supported by a continued requirement for the mother to attend upon her general practitioner on a regular basis for at least the next 12 months, for the purposes of monitoring her on-going mental state.  It was a further recommendation that the children have weekly contact with their father and be with him once each fortnight from Friday after school until late afternoon or early evening on Sunday in each fortnight, together with half of the school vacation.

14. On 13 September 2005 interim orders were made by consent which effectively implemented the recommendations of Ms M.  Orders were also made which required the child representative to interview the children each three months for a period of 12 months with liberty to apply on short notice being reserved.  The mother was also ordered to attend her general practitioner on a fortnightly basis for a period of 12 months and to provide this doctor an authority in writing to liaise directly with the child representative if any concerns were to arise in respect of the mother’s health which impacted negatively on the children’s health or welfare.  Additionally, the mother was required to continue her current counselling regime for a minimum of 12 months.  Otherwise, all interim applications were dismissed and a Trial Notice List order was made.

15. On 17 March 2006 the mother filed an application in which she sought (amongst other things) a Recovery Order for the return of the children to her.  She swore an affidavit in support which was filed on the same day.  In that affidavit she deposed that, on 20 February 2006 she had made arrangements for the children to spend a few days with a friend.  The children went to that friend’s home for one night but, according to the mother’s affidavit, her niece then went to the children’s school and took them.  The mother went on to say that the children were to remain in the care of her niece for a further three days, however, the niece took the children to the father’s home, without any discussion or consultation with the mother.  She complained that the father was refusing to permit to have any communication with the children;  that he had enrolled the children in a school local to his place of residence;  and was refusing to permit the children to come home.

16. The father filed an Application in a Case on 20 March 2006 in which he sought that the children live with him and that he have sole responsibility for their day-to-day and long-term care, welfare and development.  He further sought that the mother’s contact with the said children be reserved.  The father swore an affidavit which was filed on the same day and presented a somewhat different picture to that described in the mother’s affidavit.  It is sufficient for present purposes to note that the mother had been arrested by the police, following a motor vehicle “chase”.  The children were in the mother’s vehicle at the time and the mother was again taken to the Maroondah Hospital, Psychiatric Unit.  Annexed to the father’s affidavit was a copy letter dated 21 February 2006 which the child representative had forwarded to the solicitors for each of the father and the mother concerning questions of future residence and the mother’s health issues.

17. It was the case, as the mother had deposed, that her niece had collected the children from school and had delivered them to the father.  However, according to the father’s affidavit this was in circumstances where the mother had “kicked the children out of the house” and had “told them that she did not want them there”.

18. The matter returned to Court on 19 April 2006.  The child representative was legally represented, as were the father and the mother.  Orders were made by consent granting the mother leave to withdraw her application filed 17 March 2006.  Additionally, the Court ordered that all previous residence and parenting orders be discharged and that until further order both children reside with the father who was to have sole responsibility for their day-to-day care, welfare and development.  The Court also made an interim order that the mother have such supervised contact with the children as was agreed between the father, mother and child representative.  Otherwise, all interim applications and responses were dismissed and costs were reserved.

19. A Trial Notice List hearing took place on 17 November 2006. The Independent Children’s Lawyer, together with the father and the mother agreed that the proceedings were to be conducted pursuant to Div 12A of the Family Law Act 1975 (“the Act”) and signed the requisite consent.  An order was made that the trial was to commence on 19 January 2007 and that the father and the mother were to file and serve completed questionnaire forms at least five days before the commencement of the trial.

20. The father’s questionnaire was filed, however, the mother did not file her’s in accordance with these orders.

21. The proceedings came before me on 19 January 2007.  The father, the mother and the “I C L” were all legally represented.

22. An order was made for the mother forthwith to file and serve the questionnaire.  There was a further order for the mother’s solicitor to advise my Associate, as well as the solicitors for the father and the I C L, as to whether or not the mother had been granted legal aid, and whether such a grant would extend to payment for a psychiatric assessment of the mother.  If that were so, then the mother was forthwith to attend upon a psychiatrist for the preparation of the assessment.  There were also orders made dealing with the practical steps needed to obtain that assessment.  Leave was granted to the I C L to subpoena the mother’s medical records and further to provide access to such records to the psychiatrist who was to prepare the assessment.  There was a notation to the orders that the mother consented to the orders which had been made in relation to the preparation of the psychiatric assessment and the steps necessary to have it carried out.

23. In accordance with those orders, Dr S, a psychiatrist, prepared a report dated 29 March 2007 which set out his psychiatric assessment of the mother.  The Report was later annexed to an affidavit sworn by Dr S on 10 April 2007 and filed 18 April 2007. 

24. The matter returned to Court on 16 April 2007.  The father, the mother and the I C L were all legally represented.  Orders were made by consent which in broad terms, and subject to certain conditions, provided for the children to spend time and communicate with the mother on alternate weeks from 11:00am until 2:00pm.  The time was to be spent at the residence of, and supervised by, a Ms P, and the proceedings were adjourned until 20 July 2007. 

25. The father and Ms P both filed affidavits on 19 July 2007.  The mother and her own mother both filed affidavits on 16 July 2007.  For present purposes it is sufficient to note that there was what could be euphemistically described as a falling out between the mother and Ms P which culminated in a physical altercation.  On 31 May 2007 Ms P obtained an Interim Intervention Order against the mother and on the following day she herself received an Interim Intervention Order against her made at the mother’s instigation.  Ms P’s order was made final on 12 June 2007, to last until 11 June 2008.  The mother did not attend at Court and did not prosecute her own application.

26. The maternal grandmother offered her services as supervisor, however, this was not agreeable to the father.  The father did not oppose the continuation of orders which would ensure that the children spent time with their mother, however did urge that it should be supervised by an independent person.

27. The proceedings came before me again on 20 July 2007.  The father, the mother and the I C L were all legally represented.  The mother had attended at Court, however, prior to the case commencing left the Court and the vicinity of the Court and did not respond when she was called. 

28. I ordered that all applications be adjourned until 14 September 2007.  I further ordered that the mother appear in person on that date, and directed that if the mother did not do so, then the proceedings would be dealt with on an undefended basis and on the basis of affidavits and evidence which were current as at the time.  I also suspended, until further order, the order made on 16 April 2007 which provided for the children to spend time and communicate with the mother.

29. On 14 September 2007 I received as Exhibit “M1” a letter dated 29 August 2007 from Dr T, a Consultant Psychiatrist, who has treated the mother.  The letter indicated that the mother had been diagnosed in the past as suffering an “Adjustment Disorder” and “Depression” and had been prescribed antidepressants.  Dr T went on to record that during the time in which he had known the mother, there had been elements in her presentation, and in her family history, that were suggestive of a mild atypical form of Bipolar Disorder which he had been managing conservatively with antidepressants.  However, he went on to say that he was “now inclined to believe” that the impulsivity which the mother has displayed, and the mildly paranoid interpretation she had placed on the events of the Court, were suggestive that the prescription of a mood-stabilizer was indicated, which he had that day provided.

30. Following a brief hearing on 14 September 2007 I made orders in Chambers on 21 September 2007 which provided that the hearing proceed to finality as a Less Adversarial Trial case and I also made a number of procedural orders.  I further ordered that a Family Report be prepared.  The further hearing was adjourned until 12 December 2007, by which time the Family Report was due to have been completed. 

31. Ms L prepared that Report and it was dated 10 November 2007.  Interviews were conducted with both parents and the children.  Additionally, Ms L observed interactions between the father, Ms H (his partner) and the children, as well as interactions between the mother, the maternal grandmother and the children.  Ms L read Dr S’s Report as well as the letter from Dr T and had conversations with the legal representative of the father, the mother and the I C L.  It is convenient to refer to Ms L’s evaluation and recommendations at this stage, given that they were the basis of orders which were later to be made. 

32. As Ms L recorded, the proceedings essentially concerned how to best assist the twins to spend time with their mother in a way that would provide an opportunity for them to reconnect with her, whilst ensuring their safety and well being.  It must be remembered that the children had not seen their mother for some 18 months prior to the meeting with Ms L.  Ms L described the mother as presenting at the time as being motivated to rebuild the relationship with her daughters.  The possibility of her spending parenting time with them at a contact centre had been canvassed and the Family Consultant reported that the mother had advised she had made all necessary steps required to ensure that she could do this.

33. Ms L wrote that she was “troubled by [the mother’s] continued pre-occupation with [the father], his new relationship, and the degree to which she continues to hold him exclusively responsible for her mental health difficulties and the deterioration in her relationship with her daughters”.  Ms L agreed with Dr S’s view that the mother would need to demonstrate an ability to focus on “the welfare of the children rather than to seek to punish [the father]”, if she was to be successful in reclaiming her role as mother.

34. In the Family Consultant’s view the father was genuine in his statements that he wanted the girls to have a relationship with their mother, however, he was also noted as being realistic about this prospect currently not being a safe option for the twins.  Ms H, the father’s 48-year-old partner, was recorded as having a close relationship with the children.  The children were said to interact confidently and warmly with her as well as being physically demonstrative towards her.  In Ms L’s view Ms H did not impress as wanting to undermine the twins relationship with their mother, nonetheless, as she also recorded, there was a level of conflict between the parents and Ms H which needed to be decreased and managed in a way that would not affect the children’s happiness and well being. 

35. The Family Consultant supported the view held by Dr S at an earlier stage that the mother’s parenting time should be supervised for at least six months prior to any long-term parenting orders being made.  She also stated that the children’s views also needed to be given significant consideration.  Neither child at the time felt confident enough to spend time with their mother without another trusted adult being present, and they made it very clear that they did not perceive their maternal grandmother as being a trusted adult.

36. It was recommended that the mother should commence her parenting time at a formal contact centre as soon as a place became available and that she should focus on developing trust and intimacy with her daughters over the next six to eight months, at which time there could be a review.  If this time had progressed well, and if the twins were in agreement, then the mother could commence short, unsupervised outings with the girls, such as going to the movies, dinner or shopping.  At that time, the mother could also start to be included in attending important events with the girls, such as school concerts or sporting events.  The degree to which that plan would be successful, according to the Family Consultant, would depend on the adults addressing the long-standing conflict, co-operating with each other and prioritising the children’s right to have a relationship with both parents in a safe way.  A crucial factor was noted to be the mother’s mental health and her ability to move on with her life and to focus on her role as a mother and not as an aggrieved ex-wife.

1. Various recommendations were set out in the Report which fleshed out these matters, one of which was that the father maintain sole parental responsibility.

2. The mother did not attend on 12 December 2007 when the matter returned to Court.  The father attended in person, having been earlier granted leave to do so, and the I C L was also legally represented.

3. Notwithstanding that the mother had not attended, the father and the I C L invited me to make certain orders which significantly reflected the recommendations contained in the Family Report.

4. In the event I discharged all previous parenting orders providing for the children to spend time with their mother and made the orders which had been proposed by the father and the I C L.

5. Subsequently on 14 December 2007 I made procedural orders in Chambers for trial.

6. Those orders were designed to have the final stage of the LAT case commence on 12 May 2008, with an anticipated hearing time of three days.  Orders were made for the matter to be mentioned on 16 April 2008 and default orders were put in place to cover the possibility that the mother did not comply with the orders requiring her to file affidavit material. 

7. Prior to the orders being made in December, the mother had filed a Notice of Discontinuance on 11 December 2007.  That document, together with a Notice of Address for Service filed on the same day, and a Notice of Ceasing to Act, were all filed at the Dandenong Registry (not the Melbourne Registry, which is where this case is being heard) and were not brought to my attention when the matter came before me on 12 December 2007.  Indeed, given that I shortly thereafter had leave, the documents did not come to my attention for some considerable period of time. 

8. Accordingly, the orders which I made on 12 December 2007 and subsequent orders made in Chambers on 14 December 2007 were made without my having any knowledge of the fact that the mother had discontinued the proceedings.

9. I was not aware at the time whether the Notice of Discontinuance had been served on the solicitors for the father or the I C L, however, subsequently I was informed that it had not.

10. On 12 February 2008 my Associate wrote to the solicitor for the father, the I C L, and the mother advising that the matter was to be listed for mention at 9:30am on 28 February 2008.  The letter explained the reason for this listing as having its genesis in the Notice of Discontinuance.  Inter alia the letter notified the wife that she should attend at Court or by a telephone link and advised how this should be arranged.

11. The letter went on to state:

    “At the mention advice will be sought as to the future conduct of this matter.

    As you will be aware, interim orders were made on 19 April 2006 which provided that until further order both children were to reside with him and for him to have the sole responsibility for their day-to-day, welfare and development.  On 12 December 2007, her Honour discharged all previous orders providing for the children to spend time with their mother, and made new orders which, amongst other things, provided the mother with the opportunity to spend supervised time with the children at Gordon Care.  Her Honour is not aware whether this arrangement has as yet been implemented.  Her Honour also notes that concerns have been expressed as to the costs incurred by the father in the past.  Further costs will of course be incurred if the matter proceeds in the manner envisaged in and provided by the procedural orders made 14 December 2007.  Some of those orders are no longer relevant given the Notice of Discontinuance.

    However, the fact that the mother has discontinued her applications does not necessarily means that she consents to the father’s application for final orders.  Further, the Court must be satisfied in any event that any orders are in the best interests of the children, regardless of whether the father’s application is opposed or not opposed.

    Her Honour requests that all parties consider the implications and effect of the mother’s discontinuance of her applications upon the future conduct of these proceedings.”

12. On 21 February 2008 the father’s solicitors wrote to my Associate, forwarding a copy to the mother, and to the I C L.  Amongst other things, the solicitors advised that the father had forwarded his application to the contact centre but they had been awaiting advice from the mother’s solicitors regarding the payment of the costs for the supervised counselling.  The father’s position was, put briefly, that he wished to proceed with his application “as it currently stands”.

13. On 28 February 2008, as had been arranged, the matter came before me.  The mother did not attend and there had been no response made by her to the letter sent on 12 February 2008.

14. I heard submissions on behalf of the father and the I C L. 

Discussion

1. The children are living with their father pursuant to interim orders which were made on 19 April 2006.  Interim orders were made which enabled the children to spend time and communicate with the mother in a manner which protected their welfare.  That was not able to be achieved, as I have already explained, and those earlier orders were discharged. In keeping with the recommendations of the Family Consultant, arrangements were then put in place which would enable the mother to spend supervised time with the children at a contact centre.  That order and certain other orders ancillary to it were made on 12 December 2007.  Those orders are extant.  Further, orders were also made on the same day which required the father to authorise and direct the children’s school to forward copies of the children’s school reports, photographs, newsletters and the like to the mother, at her expense.  The father was also required to keep the mother advised of any medical and/or health issues or emergencies affecting the children, with the information to be conveyed to the I C L who was then to forward it to the mother.

2. The mother’s substantive application which was filed on 8 June 2005 was discontinued.  She has not further participated in these proceedings.  On the basis of the Family Report I am satisfied that the children should spend time with their mother but in a way which will protect them.  Again, on the basis of the Report I am satisfied that the father understands and wishes to assist the twins in re-establishing a relationship with their mother.  The orders provide a mechanism for this to occur, should the mother wish to take advantage of them.

3. The mother no longer has an application before the Court.  She has not sought orders from the Court and ceased to participate in the proceedings, notwithstanding invitations extended to her as recently as 12 February 2008.

4. The Court cannot require a person to participate in litigation.  In the circumstances there is nothing further that the Court can do than has already been done.  The role of the I C L has been performed, and I am satisfied at all times in a responsible manner.

5. In making the orders which are set out at the beginning of these Reasons I have had regard to the objects and principles of Pt VII of the Act which is the part of the Act dealing with children. The Act places a very high emphasis upon the importance of a meaningful relationship between children and both their parents and it is generally the case that children will benefit by having a meaningful relationship with both parents, provided however that it is in their best interests. Again, it is generally the case that it is in the best interests of a child to spend time with both parents, but this can only be so if a child is safe.

6. Given that the Court will be making a parenting order, the presumption of equal shared parental responsibility applies.  I have no hesitation in saying that I am satisfied that it would not be in the children’s best interests to make such an order.  It would be at best impracticable to require the father to communicate and consult with the mother about the twins, although, as seen, he still is required to provide her with information about them.

7. It is implicit in the earlier orders that the Court made a determination that it was in the best interests of the children, on an interim basis at least, for them to live with their father and for any time to be spent with their mother to be subject to supervision.

8. Nothing which has happened since those orders were made would provide any foundation for their discharge, assuming that the mother indeed chose to seek such an order.

9. The orders which are set out at the beginning of these Reasons do no more than make the interim orders final in so far as they provide that the children will continue to live with their father and that he will continue to have sole parental responsibility for them.

10. In determining that those orders are in the children’s best interests I have considered the two primary considerations and the additional considerations which are set out in s 60CC of the Act. The first of the primary considerations is the benefit to the children of having a meaningful relationship with their mother and father. I have no concerns, given the Family Report about the relationship that exists between the father and the girls. As I have noted, there is a mechanism in place which can lead to the re-establishment of a meaningful relationship between the girls and their mother, should the mother choose to accept this.

11. The second of the primary considerations refers to the need to protect children from physical or psychological harm or being exposed to abuse, neglect or family violence.  The evidence establishes the future exposure of the girls to risk, unless the time being spent between them and their mother is supervised.  Such an arrangement might have led to a situation where the time could have increased and eventually, hopefully, supervision could cease.  However, the mother has withdrawn from the proceedings.

12. I am satisfied that the father’s relationship with the twins and that of his partner with them is a good one and that they can and do provide appropriate physical, emotional and educational care.  The Family Report makes it clear.

13. The additional considerations also include a requirement to consider how each parent has demonstrated his or her responsibilities towards parenthood and there is nothing in this case which leads me to have any doubt about the father in this regard.

14. Whilst I am satisfied that the father has the capacity, and has demonstrated that capacity, to provide appropriately for the twins, I cannot be satisfied at the present time that the mother is in a similar situation.  Hopefully that may change in the future.

15. It is generally desirable for the Court to make orders in children’s matters which at least minimise the possibility of future litigation.  That said, parenting proceedings are never final in the sense that children change, as do the circumstances of their parents.  In those circumstances arrangements may also need to change.

16. The Act recognises this.  It is open, for example, to parents to enter into parenting plans, which have the effect of varying existing orders.

17. The foregoing matters are the most prominent in the statutory matters to which I am obliged to give consideration.

18. I take into account that the I C L supported the orders which are set out at the commencement of these Reasons and that the orders are, so far as is possible, consistent with the recommendations contained in the Family Report.

19. For all the foregoing Reasons, and in light of the fact that the mother has discontinued her application, I am satisfied that the orders are consistent with the best interests of the children.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:                 

Date:    23 May 2008