DAHER & HALABI

[2014] FamCA 675

FAMILY COURT OF AUSTRALIA

DAHER & HALABI [2014] FamCA 675

FAMILY LAW – CHILDREN – Interim – Where it is agreed that the father’s time with the children be reduced – Where the mother proposes that time be supervised by an independent supervisor – Where the father seeks that his time with the children be supervised by members of his family – Where there is a venomous relationship between the parties – Where family violence has occurred – Where the father currently spends time on Wednesday and Saturday with the children – Where it is agreed that the father’s time on Wednesdays be cancelled – Where it is agreed that the parties be restrained from removing the children from the Commonwealth of Australia –Where it is ordered that the father’s time be supervised by an independent supervisor – Where it is ordered that the children and parents engage in family therapy.

FAMILY LAW – LEGAL PRACTITIONERS – Conflict of interest – Where the mother is a partner of a law firm – Where the mother’s firm acts on her behalf – Where the mother’s brother is also a partner at the firm – Where the husband deposes that he has confided in the mother’s brother – Where the husband sought to exclude the mother’s firm from acting – Where it was found there was no basis for excluding the mother’s firm.

Family Law Act 1975 (Cth)s 60CA, 60CC.

Goode & Goode (2006) FLC 93-286;
Griffis& Griffis (1991) FLC 92-233;
McMillan & McMillan (2000) FLC 93-048;
Thevenaz & Thevenaz (1986) FLC 91-748.

APPLICANT:

Ms Daher

RESPONDENT: Mr Halabi

INDEPENDENT CHILDREN’S LAWYER: Mr O’Dowd

FILE NUMBER: SYC 4000 of 2010

DATE DELIVERED: 12 August 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 11 August 2014

REPRESENTATION

APPLICANT IN PERSON Ms Daher

COUNSEL FOR THE RESPONDENT: Mr Maddox

SOLICITOR FOR THE RESPONDENT: Oxford Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shea

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

Orders

1. Pending further order the Orders made by Justice Le Poer Trench on 1 April 2014 (as amended on 3 April 2014) be varied only as follows:

   1.1.Orders 3, 4 and 5 are discharged.

   1.2.The children, B, born … 2002, C, born … 2003 and D, born … 2006, are to spend time with the father each Saturday from 3.00 pm to 6.00 pm (or at such other time as agreed in writing between the parents).

   1.3.The children’s time with the father is to be supervised by an employee of E Agency, or such other professional supervisor or supervised contact service agreed in writing between the parents and the Independent Children’s Lawyer.

   1.4.Each parent is to forthwith do all acts and things necessary in order to arrange for supervised time to commence at the earliest opportunity.  

   1.5.The Court NOTES that the Independent Children’s Lawyer will provide a sealed copy of these Orders and the Orders of 1 April 2014 (as amended on 3 April 2014) to E Agency.

   1.6.In the first instance the costs of supervision of the father’s time be met equally by the parents.

2. Both parents be and hereby are restrained from:

   2.1.Discussing these proceedings (or any other legal proceedings involving either of the parents) with any of the children or within the hearing of any of the children;

   2.2.Discussing any of the allegations raised in these proceedings (or any other legal proceedings involving either of the parents) with any of the children or within the hearing of any of the children;

   2.3.Showing any of the children any documents relating to these proceedings (or any other legal proceedings involving either of the parents), and

   2.4.Allowing any other person to do any of the above.

3. The parents and the children forthwith engage in family therapy with a therapist nominated by the Independent Children’s Lawyer (“the nominated therapist”) for the purposes of addressing the impact of the parental conflict on the children and the children’s relationships with both parents.

4. For the purposes of Order 3 hereof:

   4.1.The Court notes that the Independent Children’s Lawyer is making enquiries with Dr F, Psychologist.

   4.2.Each parent shall, within 48 hours of receiving written notification from the Independent Children’s Lawyer as to the name and contact details of the nominated therapist, contact the nominated therapist and make and attend the earliest available appointment with him/her. 

   4.3.Each parent shall attend appointments with the nominated therapist at such times and frequency as recommended by the nominated therapist, until such time as the nominated therapist recommends in writing that their attendance is no longer required.

   4.4.Each parent shall do all acts and things necessary to comply with reasonable recommendations made by the nominated therapist in relation to the issues identified in Order 3 above.

   4.5.The mother shall ensure that the children (or any of them) attend appointments with the nominated therapist as requested by him/her.

   4.6.The mother shall use her best endeavours to ensure that her husband, Mr G, attends appointments with the nominated therapist as requested by him/her.

   4.7.The costs of family therapy are to be shared equally between the parents.

   4.8.The Independent Children’s Lawyer has leave to provide the nominated therapist with:

   4.8.1.A sealed copy of these Orders and the Orders of 1 April 2014 (as amended on 3 April 2014);

   4.8.2.A copy of the Children and Parents Issues Assessment by Ms H, Family Consultant, dated 26 September 2013; and

   4.8.3.A copy of the Limited Issues Report of Ms H dated 18 June 2014.

5. Pending further order the mother be restrained from contacting the children by phone or SMS when they are with the father.

6. Pending further order the parents use their best endeavours to discourage each of the children from seeking to communicate with the mother by phone or SMS during the occasions when they are with the father pursuant to these orders.

7. Pending further order, the father is restrained from attending any of the children’s extracurricular activities or sporting events.

8. By consent, until further order each party, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children B (male) born in 2002, C (female) born in 2003 and D (female) born in 2006 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s name/names on the Watch List until the Court orders its removal.

9. Until the Court otherwise orders the Watch List entry be removed in six months from today’s date.

10. All communication between the mother and the father in relation to the children is to occur via the parties’ legal representatives save for emergencies.

11. The costs of the parties and the Independent Children’s Lawyer of and incidental to the proceedings before Justice Loughnan are reserved.

12. Leave is granted to the Independent Children’s Lawyer to provide to the therapist and the Chapter 15 expert copies of relevant judgments, orders, memoranda and Family Consultant’s assessments.

13. The return of subpoena listed on 13 August 2014 is vacated.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daher & Halabi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4000 of 2010

Ms Daher

Applicant

And

Mr Halabi

Respondent

EXTEMPORE JUDGMENT

INTRODUCTION

1. These are proceedings for interim parenting orders in respect of three children, B, born in 2002, C, born in 2003, and D born in 2006.  By her Application in a Case filed in 4 July 2014, the mother sought that the father’s time with the children under orders made on 3 April 2014, themselves being interim orders, be suspended pending further order.  The main issue before the Court relates to whether the father’s time with the children should continue to be supervised by members of his family or whether there should be an independent supervisor.  There are several related issues also raised by the parents and the Independent Children’s Lawyer (“ICL”), some of which require determination. 

2. The parties relied on a number of affidavits.  I suppose the only controversial aspect of that was the fact of an interim hearing before Le Poer Trench J in March of this year which resulted in the decision of 3 April 2014.  The mother sought to rely on an affidavit that was before his Honour, an affidavit of February 2014.  She relied on it.  I read it.  I apprehend from something the counsel for the father said that the father was not sanguine about.  As I said, the issues to that time were largely decided and dealt with by his Honour in his judgment of 3 April.  The expert evidence comes in the form of two truncated reports from a family consultant, Ms H, dated 26 September 2013 and 18 June 2014, and I will come back to them later. 

3. The matter came before me yesterday in the judicial duty list.  Two different judges have earlier made interim parenting orders in the matter and because of that, consideration was given yesterday to try to have the matter listed before Le Poer Trench J who had the most recent and most significant involvement in the case.  That did not prove practicable in a timely way, notwithstanding the cooperation from his Honour’s chambers.  I did, however, order that the matter be listed before a judge this morning for the purposes of preparing it for final hearing and the parties, I understand, attended before Rees J at 10 this morning in that regard. 

4. The interim matter required more time than the duty list rules require but that did not matter, I was available.  However, it did mean that we ran all afternoon yesterday and ultimately there was not time to give reasons for judgment and the matter was put over to today.  I excused the parties on delivery of judgment but the ICL is present, the mother is here in person, acting for herself and the father is represented by a solicitor.

Background Facts

1. The mother and father are both 37 years of age.  They met in 2000 and commenced living together in 2001.  They were married in that year.  They separated under one roof on 3 March 2009 and physical separation occurred when the father moved out of the former matrimonial home on 1 May 2009.  The parties are divorced.  They went through a religious divorce on 1 August 2009 and then were divorced under Australian law with effect from 6 January 2011.  The mother married Mr G in 2012 and they have a daughter, J, who was born in 2014. 

2. Final parenting orders were made by agreement on 13 July 2010.  Under those orders the parents have equal shared parental responsibility for the children and the children were to live with the mother and spend time with the father.  Between June and September 2013 the father’s time with the children was reduced to one hour a week. 

3. Ms H saw the parties in early September and she was told that the mother had been the children’s primary carer prior to and since separation.  She was told that up until February 2013 the children were spending regular time with their father, in line with the consent orders of July 2010, but as varied by agreement between the parents.  That involved a couple of hours each Wednesday evening and each weekend on one day from 10.00 am till 7.00 pm, alternating between Saturday and Sunday.  The parents told Ms H that since separation the children had been in the father’s care overnight on a maximum of two or three occasions, the last of which was in August 2009 on the mother’s version or in 2010 on the father’s version. 

4. On 11 September 2013 orders were made to restore the father’s time with the children but a restraint was made preventing the children coming into contact with their paternal uncle.  The children, again, had their time restricted with the father and between 23 October 2013 and 14 February 2014 they spent no time with him.  The father brought contravention proceedings, there were further interim proceedings and those matters came before Le Poer Trench J, as I have indicated towards the end of March of this year.  By orders made on 3 April 2014 the current interim orders were put in place and they provided for the father to have time on a Wednesday and on a Saturday, supervised by the paternal aunt.  On 3 April 2014 an order was made for a measure of expedition of the proceedings.  It does not seem as though much was done about the latter order but, as I say, the parties appeared before Rees J this morning to get the final proceedings moving along.

The Legislation

1. In parenting proceedings the relevant legislation is Part VII of the Family Law Act1975 (Cth).  Section 60CA provides that parenting proceedings are determined on the basis that the best interests of a child are the paramount consideration.  Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests and they are divided into primary considerations and additional considerations.  The sequence of decision-making for identifying appropriate parenting orders starts with parental responsibility and if an order will be made for equal shared parental responsibility, and in this case such an order was made in 2010, s 65DAA requires that the Court consider making an order for equal time, and if that is not ordered for the parties to have substantial and significant time.  Findings in relation to all these things are made by reference to what is in a child’s best interest.

2. These are interlocutory proceedings and there are real restrictions and limits about what can be achieved in such proceedings. Those matters are mentioned in a judgment of the Full Court in the matter of Goode[1].  What I propose to do is to set out the parties’ proposals, consider the matters in s 60CC and make findings about living arrangements and associated orders.  As I say, there are restrictions on what can be done in interlocutory proceeding, and particularly because findings of fact are not possible on disputed issues without independent evidence that wholly supports one version of events or excludes the other.

   [1] Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, (2007) 36 Fam LR 422

The Parties’ Proposals

1. As to the parties’ proposals, there were some changes even during the course of the hearing.  As to what was agreed, it was agreed that the father’s time with the children on Wednesdays would be cancelled and it was agreed that he would continue to see the children on Saturdays.  The mother proposed an order that the parties be restrained from removing the children from the Commonwealth and that a request be made for a related watch list entry.  I understood through his counsel that the father agreed to such an order on an interim basis.

2. The remaining issues seem to be whether the father’s time with the children would commence on a Saturday at 2.00 pm, as the father proposed, or 3.00 pm as the mother and the ICL proposed, whether the father’s time would be supervised by a professional supervisor or agency, as proposed by the ICL and the mother, or whether it would continue to be supervised by the paternal aunt and whether the paternal grandmother could also supervise, as proposed by the father.  There is an issue, although it was not expressed in any of the documents I had, seeking orders, if there is to be professional supervision how the cost of that supervision would be borne.  There is an issue about whether the children continue to see the therapist to whom they were taken by the mother as proposed by her or whether there would be family therapy with the nominee of the ICL, perhaps a Dr F.  In that regard the father certainly opposed the children continuing to see the current therapist.

3. The mother proposed, and the ICL and the father opposed, an interim order that the mother have sole parental responsibility for long-term decision-making in relation to the children.  The mother proposed and the ICL supported the father being restrained from attending at any of the children’s extracurricular or sporting activities, and I understood the father opposed that order.  The mother proposed and the ICL and the father opposed an injunction in the nature of a personal protection injunction for the protection of the mother and persons with whom she has a domestic relationship.  The mother proposed that all communication between the parties be through their legal representatives, and I think for reasons that are identified I understand that the father opposes that course.

4. The father sought an order that the restraint imposed by the orders of 3 April on time being spent with the children at his parents’ home be discharged, and it follows that the ICL and the mother oppose that discharge.  The father also sought an order in the alternative, that the mother be restrained from using her present lawyers, or that she be required to instruct those lawyers, except in an emergency, to send no more than two communications a week to the father’s lawyers.  Finally, the father proposed that the mother be restrained from contacting the children by phone or SMS when they are with the father.

5. The mother said, in effect, that her issue with that was that the children have communicated with her.  I canvassed with the parties the idea that the parties be required to join in discouraging the children from communicating with the mother during the father’s time and I do not know that there was a major dispute about that.  So perhaps that is not controversial.

Section 60CC Considerations

1. As to the matters in s 60CC, there are primary considerations.  Where they conflict s 60CC(2)(b) is to be given greater weight.  The first primary consideration is the benefit of a child having a meaningful relationship with both parents.  Each of the parents proposes that the children continue to have time with the other parent.  In her submissions the mother made it very clear that, provided the children are safe, she has wanted, and wants, the children to have a relationship with their father and it seems to me that, as best one can say today, the background facts support a finding that the children have meaningful relationship with both parents and that it would be appropriate to make orders that promote those relationships.

2. The second primary consideration is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  Abuse, relevantly, is defined to include causing a child to suffer serious psychological harm, including but not limited to when harm is caused by a child being subjected to or exposed to family violence, and family violence is defined in the Act, relevantly, to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful, and examples are given.

3. On 9 February 2013 the paternal uncle hit D in the face.  On 13 September 2013 the offence was found proved but it was dismissed without a conviction being recorded.  The mother alleges, and the father denies, that from 2003 the father was violent to the mother throughout their relationship.  It is not possible to make a finding in relation to that issue.  It is the evidence of the mother that on 16 January 2010 the paternal grandfather beat B.  I think the evidence suggests that there was an incident between the paternal grandfather and B and it relates to the boy being physically disciplined because he threw a remote control at someone.  I do not know if there is a conflict about whether that occurred.  I apprehend that the real dispute is about the seriousness of the incident.  The mother alleges that the father slapped D on 19 October 2010.  I do not think that is agreed.  

1. There have been recently a number of incidents at the mother’s home.  The mother’s husband’s car was scratched and badly damaged while in the driveway of their home.  Graffiti was scrawled on the front fence of the mother’s home.  A jacket doused in kerosene was found near the house and on the grounds of the property.  The children’s family dog, Milo, was poisoned and killed.  The second family dog consumed rat poison and became ill.  There is no dispute that those incidents occurred. 

2. It is not the father’s case that the mother caused some or all of those incidents.  The mother alleges, and the father has denied, that he was involved in some or all of those incidents.  A police investigation was inconclusive but the police notes record that the evidence tended to suggest that the father was not responsible.  Counsel for the father suggested that the incidents might have been aimed, rather than at the mother, at the husband of the mother by a third party.  The mother also alleges that there was a drive-by shooting at the home but there is no objective evidence in relation to that issue. 

3. There is no doubt that those matters could fall within the definition of family violence.  The evidence begs the question of who was responsible of course. Family violence is defined as behaviour by a person that coerces a member of the person’s family.  To fall within the required definition the person responsible must be the father or a member of his extended family.  The facts raise a risk in relation to violence.  There is no doubt that there has been violence of the type that is identified in the legislation.  Ms H records in her June 2014 report that the children recited the substance of the incidents at the mother’s home.  There is no doubt that the children have been exposed in the way suggested by the section, to violence.  The difficulty is, it is not possible to know who was responsible. 

4. As to the additional considerations, firstly, any views expressed by a child and issues going to the weight that should be given to those views, Ms H reported in September of last year that the children presented as polite, friendly and socially competent.  They had, in her opinion, a high level of confidence in their mother’s ability to care for them and identified her household as a home that was safe for them.  That was not surprising to Ms H given the care history of the children and the limited time that they had with their father since separation.

5. Relevantly, in September 2013 Ms H recorded that the children loved their father and wanted to spend time with him.  They individually and collectively expressed a preference to continue to see him on Wednesday afternoons and each weekend, which at that time, Ms H noted, was in accordance with the existing arrangement.  They each expressed considerable reluctance about staying overnight with their father and that, Ms H thought, seemed to relate more to them not having an experience of staying overnight with the father for a considerable period, the logistics involved as to where they would sleep and so on and them not wanting to be away from their mother.  Ms H thought it was more those things rather than them having any doubt about their father’s ability to care for them.  The children did tell Ms H they did not want their father to leave them alone with members of his family and they expressed to her unhappiness about the way their paternal uncle and grandfather had behaved towards them in the past. 

6. In her June 2014 report Ms H reported that the children told her they did not want to spend time with or communicate with their father or any member of their paternal family.  Those views were expressed very clearly despite the children having expressed a very different view only nine months before.  Ms H recorded:

   It is disturbing, to say the least, the extent to which in nine months the children’s views about their father have changed.  Their negative feelings towards their father and spending time with him also appeared to extend to include all members of the paternal family despite their seeming to have had little or no contact with them for some time. 

7. Ms H, as I said, reported that the children told her of the incidents that had occurred at their home.  She said that their various expressed concerns in relation to their father ranged from the mild, she cited their moral outrage that he parked inappropriately in disabled car parks, to serious allegations of criminal activity and family violence - citing that the father had poisoned their dog, attempted to burn their house down and been involved in a drive-by shooting targeting their house. 

8. Ms H found it difficult to say how much weight the Court should place on the children’s views.  She noted that their views are only one small part of the story for this family and that there are significant allegations of abuse and family violence and of inadequate and insensitive parenting.  She recorded that in the limited issues report of June 2014 report, which was to focus solely on the children’s views, she was unable to place those views in any context. 

9. She reported that the children perceived that the conflict and their father’s anger and hostility caused their mother distress.  They presented to Ms H as very loyal towards their mother, each child appearing attuned and sensitive to their mother’s needs and feelings, especially in relation to recent events.  B told Ms H that he can tell that the mother is anxious and worried about the children’s safety and wellbeing when they are with their father, and there is reference in Ms H’s report to the children making observations about the facial expressions or demeanour of the mother and her husband before periods of contact.

10. As to the nature of the relationship of the parents with the children, it is not really possible to say much about that.  As Ms H recorded in her September 2013 report, the mother has been the children’s primary carer.  I do not think that is controversial.  That accounts for the agreement in 2010 that left the children primarily in the mother’s care.  It would account for the orders that have been made by the Court over time, leaving that basic arrangement in place.  It would account for the fact that there is no application before me to change that situation.  Findings about the relationships between the children and their parents would need to await, if it is possible, an authoritative decision about the incidents at the mother’s home. 

11. If the father, or somebody associated with him, with his knowledge, is causing these problems then one would question the value of his relationship with the children.  If the mother, despite knowledge to the contrary or a reasonable basis for doing so, is found to have maintained her allegations in respect of the father’s behaviour or the behaviour of members of his family, then that might called for a re-examination of the nature of her relationship with the children. 

12. The background facts suggest broadly that the parties think those relationships are good enough to warrant persisting with time between the father and the children.  Given the very serious nature of the factual background, it says something I think that the mother agrees to a continuation of the father’s time, albeit on a supervised basis.

13. It is not possible to make findings about some of the other additional considerations.  There is no serious assertion that either of the parents has failed to take an opportunity to spend time or communicate or participate in decision-making in relation to the children.  As to the parents fulfilling, or failing to fulfil their obligations to maintain the children, there is a very puzzling circumstance in relation to financial support.  It seems that an agreement has been reached between the parents whereby the father pays no child support for the children.  There is no evidence before me in the form of a child support agreement.  The father has made a statement in an affidavit that he has the wherewithal to support the children financially. 

14. The mother has given evidence that she has had difficulty and needs assistance with the financial support of the children.  She said that she had been required to return to work as a solicitor to make ends meet and that, with the father’s consent or without his opposition, she had been required to move the children from a private or parochial school to place the younger children in a public school.  She was able to retain B at a parochial school but only by accessing funds that she had earmarked for his university education.  It is her evidence that there are serious financial costs associated with future necessary dental treatment, as I understood it, for the younger children.  A cost of the order of $14,000 was mentioned. 

15. Now, it might be that there is a logical explanation for the mother struggling to support the children and the father paying no child support.  It is a bit hard to see how it came about, and it is of no use speculating about it.  There is an issue about that.  There is an issue about the extent to which the father is fulfilling his obligations to maintain the children.  It lends some support to his position that the mother has not sought to enforce any asserted agreement or has not sought to have any asserted agreement set aside.  No adverse finding should be made.

16. As to the likely effect of changes, the only change in prospect is a change from family supervision to third party supervision and it seems to me that there are obvious benefits in the change.  There is a further additional consideration about orders that are least likely to be lead to further proceedings.  The current arrangement has broken down.  It is clear from the mother’s evidence and from the evidence of the paternal aunt that there is no trust between them, and in my view it is likely that a continuation of supervision by members of the father’s family is likely to result in further proceedings. 

17. The mother has also given evidence, not because she did not know of the father’s proposal but has given evidence separately, that she has lost confidence in the paternal grandmother.  That is because after one of the incidents of alleged violence there was an assurance given, she says, by the paternal grandmother that the children would be kept safe.  The mother contends that that assurance was not acted on.  It is necessary that there be some level of trust and some level of confidence between the supervisor and each of the parents.  As I indicated yesterday, I do not intend to be critical of the members of the father’s family who have offered to supervise.  It is an extraordinarily generous step for someone, not a biological parent, to undertake the role of supervisor, particularly in such a highly conflictive situation as we have here.  That the paternal aunt and the paternal grandmother would volunteer to step into such a role speaks well of them and suggests that they love and support the children.

18. The problem is, because of the distrust between the families it is obvious that the mother is not going to be satisfied that members of the father’s family will act independently to protect the children.  As I say, it goes both ways.  The paternal aunt has given evidence of what she perceived as the mother preparing the children before each occasion of time with the father, not to engage in that in an open-spirited and free way.  She deposed that the mother spent 15 minutes or so hugging and consoling the children before the occasions occurred, in other words, preparing the children not to engage freely with their father.  Similarly, given that distrust it is likely that those supervisors will not be able to protect the father against malicious allegations if there were to be such allegations.  Thus the arrangement proposed by the father will not help the children or the father.  Not that I have any responsibility for the father, but it seems to me that a continuation of the arrangement where members of the father’s family were the supervisors would be a triumphant of hope over experience. 

19. Thus the likely effect of change is positive.  Provided it is workable, this arrangement would exclude there being any concern from the mother’s point of view that something done by the father would be overlooked by the supervisor or that distress expressed by one of the children would be overlooked by the supervisor.  There would be a contractual agreement in relation to terminating an event whereby anything concerning happened.  That should give the mother confidence and should mean that she would be in a position to encourage the children in respect of those events with more optimism.  It would mean, as I say, that it is less likely that there would be some mischievous or malicious allegation against the father.

20. The big problem with the proposal of the mother and the ICL is its practicability.  There is no evidence before me as to the parties’ finances but it is asserted, as I understood the case of the parties, that neither of them can afford to pay for supervision, or even half the cost of supervision.  The suggestion on behalf of the ICL was that the cost of an agency called E Agency would be something of the order of $260 a week.  The contention on behalf of the father was that, with the call out fee and mileage allowance and so on, that rate could be well in excess of $300 a week.  It seems to be not disputed that the unsubsidised fee at a contact centre could be something like $160 a day just for two hours. In the latter regard it is asserted without complaint that the waiting list at one of the major centres for subsidised time is of the order of six months.  I cannot determine whether one or both of the parties can afford the supervision charges.  There is no evidence before me of either parent’s income, their outgoings, their assets or their liabilities. 

21. As to the capacity of the parents, that is very much in issue and it is not possible for me to resolve those matters.  As I said before, the 2010 orders suggest that the parties had some confidence in each other in relation to their capacity to care for the children.  The fact that the children were positive about their mother and their father in September of last year suggests that the Court should have confidence in the capacity of the parties.  The extraordinary factual background of the case causes real concern and, as I say, I cannot get to the bottom of that. That leaves open a number of very serious possible findings.

22. There is no application before the Court other than, as I have said, that the mother continue to have the children living with her.  That suggests that, absent his concerns about the allegations made against him, the father has confidence in the mother’s parenting capacity.  It is clear that there is a significant dispute between the parties about the father’s capacity and the mother has no faith in the capacity of the members of his family.  That has not changed significantly.  It looks like, based on the report of the children of September last year, when they did have faith in their father and wanted to spend time with him they had real problems with some at least, identified members of his family.

23. Things have changed, as I have said.  In September 2013 Ms H recorded that there was nothing to suggest that any of the children felt overburdened or distracted by their parents’ conflict but they each had an awareness of the difficulties that the parents had.  By June 2014 very serious events have occurred at the home of the mother and they have affected the children.  Each of the parties in the course of submissions yesterday tried to sheet that home to the other.  Again, it is not possible to make a finding about that issue. 

24. There is no doubt there is a venomous relationship between the parties.  It was conceded on behalf of the father yesterday that, after his brother received a s 10A order in relation to striking B, the father put on his Facebook page “found not guilty, bitch” and I gave the father through his counsel an opportunity to repudiate that evidence and it was not taken up.  The response was, “Well, the mother has said similar things herself to me.”  There is no evidence about the children accessing social media but at 12, 10 and 8 years of age there is a real risk that the children could be exposed to something that the parties had put on social media. 

25. Thus there is evidence about a significant concern in relation to the father.  It may be that he is correct and that the mother is just as bad. Perhaps she has a Facebook page that is riddled with poisonous remarks about the father, but there is no evidence about that before me. 

26. As to the characteristics of the children, there is nothing much there.  There is a complaint I think about the father’s reckless or careless or insensitive treatment of the children as they came through the Ramadan period this year, leading to the breaking of their fast.  Compared to the other issues, this is perhaps not of great significance but there is some evidence about that. 

27. I have referred to family violence.  As to family violence orders, on 1 November 2013 an apprehended violence order was granted against the father for the protection of the mother.  That application was withdrawn on 15 November 2013.  That is the subject of complaint made by the mother and that has been investigated, or is being investigated, by NSW Police.  On 7 February this year an apprehended violence order was granted against the father for the protection of the mother’s husband and that order was withdrawn in April of this year.  As far as I know there are no current orders. 

28. Suffice it to say that those factors, such as they are, where findings are possible or where there is a risk, favour the orders that are proposed on behalf of the children.  The things that contradict such an order do not favour the father’s case.  The things that contradict the ICL’s proposals are the children’s very strong wish not to see the father.  As I say, that would not help the father’s case.  There is the real problem of the practical considerations.  I think the only answer is to make the orders as they have been proposed.

29. I appreciate, as I have foreshadowed yesterday, that if the mother was bent on mischief and was able to afford that cost and chose not to comply, that would mean that she could frustrate the arrangement. It would leave open, of course, the father in the short term making the entire contribution.

30. It is not possible to say whose fault all this is and so, as is the usual arrangement, it seems to me that it is sensible that the parties should be required to share the costs of supervision.  This is a cost associated with the children, just as there is a cost associated with their medical treatment or anything else.  The society has it, the law has it and the parties have it, that there is benefit to the children having a relationship with the father.  There is a cost associated with that in the short term. 

31. What the ICL has proposed is that the children’s time be supervised by an employee of a nominated agency, E Agency, or such other professional supervisor or supervised contact centre agreed in writing between the parents and the ICL.  It is obvious that that leaves the opportunity for there to be a problem. 

32. I must emphasise that the objective facts, including the incidents at the mother’s home and the level of conflict that is apparent between the parents, are not unremarkable facts.  The legislation has identified that priority is given to safety. These are not infants.  We have three children of perhaps latency age in relation to D, but 12 and 10 years of age for the other children.  They have a relationship with their father and that relationship will survive, even if, there is an interruption in their time with their father for a period.  It is not ideal.  It is not what the parties want.  It is not what the legislation suggests should happen but, if there is conflict between the safety of the children and something being put in place to guarantee the father’s time, then safety is more important.

1. The parties would be devastated if something happens to psychologically or physically harm one of these children.  They are currently in a period of dispute about their children but they have 40, 50, 60 years remaining of their relationship with these children.  They have all of the milestones in relation to these children.  They need to think about where they want to be when the children are married, whether they want to be able to equally have a relationship with their grandchildren and so on.  So the focus is keeping the children safe, and if that means that despite their best efforts the parties are not able to make these arrangements work then perhaps that is what is necessary.

2. As I explained to the mother yesterday, it is her obligation as much as that of the father to support his time with the children.  She is on record as saying she wants the relationship between the father and the children to be promoted.  It is her obligation to do everything reasonably possible to cause it to be promoted. 

3. I think it is sensible, as I explained to the mother yesterday, that the therapeutic relationship between the children be put on a fresh footing.  I know that there is the risk in terms of system abuse of the children establishing a new relationship, but unfortunately the current therapist has been put in both a forensic and therapeutic role and that causes real problems for the therapist and real problems for the Court.  We need somebody who can focus on the therapeutic involvement and for whom there is clarity about the requirement and the need to be involved in the litigation.

4. Dr F was mentioned.  There is no objection to her.  Mr Maddox raised an issue yesterday which I do not think is of relevance and she would be a good therapist.  Enquiries are being made with her and it may be that it has to be somebody else.  The ICL will find somebody else. 

5. The only other matters that were raised by the ICL were expedition and the appointment of a Chapter 15 expert witness, which I trust might have been advanced earlier today.  Turning to the orders sought by the father - he agreed with the ICLs orders, save that he sought that his mother be added as a supervisor.  For the reasons I have given, that will not be done.  He has sought that extra time be provided.  I will leave the commencement time at 3.00 pm.  He has sought that some conditions implemented by the ICL in relating to supervision be deleted, and I will not do that for the reasons I have indicated. 

6. He seeks that the children stop seeing their counsellor, and I have indicated I will order that.  He seeks that the prohibition on the venue of the paternal grandparents’ home be removed.  There is no reason to change an order that was made by Le Poer Trench J on 3 April 2014 in less conflictive circumstances than those that apply to the parties today. 

7. As to the mother being restrained from using Daher Lawyers, this is a complicated issue.  There is a provision of the Family Law Rules that requires that lawyers cease to act when there is a conflict of interest.  There is not much scope for new heads of jurisdiction in rules of Court.  That is just a statement of the obvious and the concern is a by-product of the professional role that is undertaken by legal representatives.  If it appears that a solicitor would be in conflict as a result of their professional duty to two different persons related to the proceedings then the solicitor should cease to act. 

8. The authorities canvass a number of examples.  There is transmission through the firm.  So even a clerk engaged by the firm who has confidences of one party where the firm continues to act for the other, has been found to be a reason for  the solicitor ceasing to act.  Similarly, where a partner, or a former partner, has access to confidences as a solicitor for the opposing party the firm has been required to cease to act.  It is perhaps more controversial that it has been found that in relation to family law greater care is needed to avoid the risk of conflict of interests than would be the case in other jurisdictions.  The test is a broad one rather than a narrow one, in other words the default should be to avoid the risk. 

9. The evidence in this case is unusual.  I think it can be summarised as:  the husband says that his brother-in-law, the wife’s brother, was his confidant during the parties’ marriage and since.  It is not suggested that the brother-in-law acted for him as a solicitor but the father says that, he confided in him; he received some advice from him as to how to deal with his sister during the marriage; he showed his brother in law documents and agreements that were drawn up over time; he took his advice about various things; he confided in him about sensitive things.

10. The submissions on the issue were not extensive and I was not taken to any authority.  Doing the best I can with the father’s case, there was in that relationship something close enough to the concerning relationship that could lead to a solicitor being in a conflict of interest.  A solicitor has an obligation to use his knowledge and skill for the benefit of a client.  If the solicitor is in a position whereby he has knowledge received as a solicitor from two clients who are in an adverse interest, it is impossible to discharge both duties.  I think that is the mischief that the authorities go to.  There is a decision of Thevenaz by Frederico J of many years ago and a Full Court decision of McMillan from 2000.  The authorities have traversed whether there needs to be any evidence that there was actually a confidence passed between solicitor and client and it has been found that that need not be established, just the risk.  Mullane J in a decision of Griffis agreed that all that was necessary was that a party swore that confidential information was provided.

11. I think the problem for this case is that there is no suggestion that the relationship between the wife’s brother and the father was that of solicitor and client.  That is not asserted by the father and I think that is fatal to the application.  It is always a significant thing to cause a solicitor to cease to act.  There are costs involved, of course, in re-instructing a new solicitor.  It is not done lightly.  As I say, the tests are there and they favour any risk being avoided. 

12. There is an additional problem in this case because the wife is part of the firm, that is being sought to be excluded from the proceedings.  I do not know how that would practicably be done in those circumstances.  In any event in my view the argument conflates the idea of private confidences with the important legal privilege that attaches to information that is imparted between solicitor and client.  In view there is no basis for excluding the wife’s firm.

13. Perhaps that is the reason why the application was made in the alternative - that is that the mother be restrained from instructing her lawyers to send more than two communications a week to the father’s lawyers.  I have some sympathy with this application.  A forest of trees have been killed.  However, as counsel for the father submitted any such order could not cover an emergency situation.  The problem with this is you cannot legislate for common sense.  The remedy for excessive communication is a costs order.  I know that is cold comfort, but it seems to me that if a Court was to attempt to reach down into the important role between solicitor and the solicitor’s client and prescribe the timing of communication with the other side then the Court really takes over the management of the conduct of the case of that party. 

14. The background facts support the father’s application.  The money that would otherwise be applied to the children’s future is being spent by the parties when they write letters, one firm to the other, that are not needed.  That is a holiday the children cannot have, it is a school they cannot go to, it is benefits they cannot have at home.  It affects their lives on top of all the rest of the mischief that has been done to them.  It is in the parties’ interest to desist.  Sometimes angry people in the shadow of separation do not mind destroying their own lives financially because they do not like the other parent.  Those people do their children a massive disservice.  I would encourage the parties and their lawyers to think very carefully about the communications that are passing between the households.  One thing has been said, I think it may have been the ICLs advocate yesterday - with the changed supervision arrangements hopefully there will be less cause for complaint from the mother and perhaps less cause for response from the father.  Hope springs eternal in relation to that.

15. Finally, the father sought this order restraining the mother from contacting the children by phone or SMS when they are with the father.  I do not know that the mother strictly opposed that order.  As I indicated, she said something about what happens if the children speak to her, and I have indicated what I am inclined to order. 

16. Now, that takes me to the mother’s orders sought.  She seeks an order restraining the father from assaulting, harassing, molesting intimidating, stalking otherwise interfering with the mother.  As was said on the behalf of the ICL, it is in affect an AVO.  The parties have already had proceedings commenced in the State courts.  There is a double jeopardy provision in the Family Law Act that prevents a person who has taken a step under State legislation trying to take a step in relation to the same facts under the Family Law Act. The reason for that is obvious. 

17. The ICL does not support the proposal as it will escalate the problems.  The behaviour that the mother is seeking to restrain is against the law in any event.  A particular problem is that an order for personal protection attracts the power of arrest without warrant.  It can represent a substantial escalation in the situation and it would be open to the mother to say something to the police, and if they were reasonably satisfied, just to arrest the father without further warrant. 

18. The police have indicated that they have some doubts about the mother’s judgment about her complaints about the father.  They think she has unreasonably interpreted CCTV footage in a way that no reasonable observer could find.  They think it is not likely that the report of the children in relation to a conversation they say, or one of them says, they overheard of the father and the paternal uncle outside the home on one occasion.  There is some doubt about the mother’s judgment about these things.  She insisted to the police, that the perpetrator of the graffiti or the damage to the car - I cannot recall which - was definitely the father when the police considered that the CCTV footage identified somebody 20 years younger than the father.  The police record that there was probative evidence that suggests that the father was a long way away from the mother’s home at the time.  Given that the mother could have accepted that the father caused another person to do the damage, I think the police were a bit concerned about her insistence in relation to that issue.

19. I am not going to make the order.  The power to make injunctions is one that is to be exercised carefully.  Orders are to be proper.  In the case of this injunction it is not expressed to be under s 68B or s 114.  Different considerations apply.  There are problems in relation to the children if this power is misused.  The behaviour involved is against the law in any event.  The father would be foolish in the extreme to undertake any ambiguous act in relation to the mother.  He is on record as having a fairly venomous relationship and attitude towards her.  I have cited the Facebook entry.  He needs to be very careful.  If there was some probative suggestion that he had behaved in the way complained of and the mother does not access the State powers it may well be that an injunction such as this will be put in place, escalation or not.  Of course such a course could only further damage, or potentially further damage, his relationship with the children.

20. I did not mention the mother’s application for sole parental responsibility.  I think I indicated yesterday that is not a practicable thing on an interim basis.  There is already an order for equal shared parental responsibility.  The evidence is that the parties have been able to cooperate in relation to that.  The changes to schools have been agreed.  There is no suggestion that a child has been embarrassed or endangered in relation to a medical or religious issue.  It is an issue for final trial really and I will not make that order.

21. The mother seeks an order that the father be restrained from attending at any of the children’s extracurricular activities or sporting events.  That is an appropriate order.  As Ms Shea said on behalf of the ICL yesterday, the orders already carefully identify and restrict the time the father has with the children.  If there is significant leakage of that into an occasion at an oval or some sporting event, what is the benefit of the protection that we have given him and the children by the carefully worded orders in relation to independent supervision.  It is not going to threaten the children’s wellbeing for this interim that their father is not able to be at the sporting events.  The evidence is that they do not want him to be there, but no harm will come to them because of this whereas there is potential harm if the order is not made. 

22. There have been no submissions about costs.  I reserve the question of the costs of the parties and the ICL of and incidental to the proceedings before me.

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 12 August 2014.

Associate: 

Date:  22 August 2014