Darcy and Cameroon (No 2)

[2010] FamCA 346

FAMILY COURT OF AUSTRALIA

DARCY & CAMEROON (NO. 2) [2010] FamCA 346

FAMILY LAW – PROCEDURAL – Interim orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Darcy

RESPONDENT: Mr Cameroon

INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

FILE NUMBER: ADC 928 of 2007

DATE DELIVERED: 10 March 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 10 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Reynolds

SOLICITOR FOR THE APPLICANT: SRG Lawyers

COUNSEL FOR THE RESPONDENT: Mr Charman

SOLICITOR FOR THE RESPONDENT: Ian Charman & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Croft

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

Orders

1. That until further order the child … born … July 1998 live with the father and during school terms spend time with the mother on each alternate weekend from the conclusion of school on the Friday until the commencement of school on the Monday commencing on Friday 19 March 2010.

2. That during the April school holidays the said child spend time with the mother from 3:00pm on the day being the mid point of the said school holidays until the commencement of school following the completion of the said school holidays.

3. That the handover of the said child to the mother for the purposes of the child spending time with the mother during the said school holidays take place inside the Adelaide Police Station.

4. That until further order the mother be restrained and an injunction is hereby granted restraining her from communicating in any way and through any medium with the said child during any period of time when the child is living with the father.

5. That by 4:00pm on 22 March 2010 the mother file and serve all affidavits of evidence in chief on which she intends to rely for the purposes of the hearing.

6. That by 4:00pm on 22 March 2010 the father file and serve all affidavits of evidence in chief on which he intends to rely for the purposes of the hearing.

7. That further consideration of all outstanding applications and responses in this case be adjourned to 9:00am on 25 March 2010.

8. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:       ADC 928 of 2007

MS DARCY

Applicant

And

MR CAMEROON

Respondent

EX TEMPORE REASONS

1. This matter was listed again before me today, having been adjourned from Wednesday 2 March 2010. 

2. This continues to be a difficult matter and the difficulty is knowing what is best for this child.  I am not going to repeat all that I have said on previous occasions about that, but it is a sad, sad circumstance that this child has the parents that she has.

3. The conflict is obvious, the impact upon the child of that conflict is obvious.  It may be that things have changed and this is, of course, the father’s case, he says that the current problems are being caused entirely by the mother.  There is evidence which points to that, but nothing is as black and white as that, and I have referred to and remind myself of the oral report that Dr A presented last week as to she having the same concerns and particularly having concerns around the child in the father’s household, as well as concerns around the child in the mother’s household.  Thus, as I say, I am mindful of that history and I have made pointed comments about that in the recent past, but this case does not become any easier.

4. The position now is that my order of 2 March 2010, in terms of the living arrangements for the child, between then and now, has not been complied with.  There is a factual dispute between the parties as to what happened on Friday 5 March 2010, when the child was due to be handed over to the father at the Police Station.  The father says he attended and waited, that the child did not appear, the mother did not appear and nor did anyone else appear who might have been involved in the handover.  The mother says that she arranged a friend of hers to conduct the handover, that is one Ms E, and I have an affidavit of Ms E before me, which deposes to what she says occurred on that day, and that, in fact, she and the child were at the police station.

5. I am not in a position today to make any finding about that issue by simply reading the affidavit material and hearing submissions.  But what I can take account of is that the only affidavit that the mother relies upon is the affidavit of Ms E.  There is no affidavit from the mother herself outlining, for example, any attempts or efforts by her to encourage the child to go with her father and even more significantly, there is absolutely nothing before me - and Mr Reynolds has indicated he has no instructions about this - to indicate that there was any attempt by the mother, over the weekend and including the Monday of the long weekend, to ensure that my order was complied with.

6. Unfortunately, that is typical of the approach and behaviour of the mother in this case.  In the time that this matter has been in my docket - and I have referred to this before and I make the general comment - that there are now numerous examples of the mother failing to comply with orders of this court in terms of the child not being handed over to the father.  And I note that there have been two trials previously over these sorts of issues and findings have been made against the mother.

7. Thus, as I say, although I cannot make any finding as to what in fact happened at the handover, I take account of the matter on which I have commented in relation to events surrounding the handover.  As a result of that though, the child has remained with the mother and, as I understand it, is currently at school.  Thus the father has not seen the child for well over a week, and that is concerning in itself.

8. Today I have received a further report from Dr A.  Dr A provided a report on 2 March 2010, following on from her interview of the child.  My recollection of what Dr A said in summary was that she was concerned at the mental state of the child, the child was saying to her that she did not want to return to her father, and she wanted to stay with her mother.  Dr A though, said that she, Dr A, still had concerns about what was happening in the mother’s household.  She also had concerns about what was happening in the father’s household.  On balance, her recommendation at that time, particularly taking into account her assessment of the mental state of the child and her distress, was that the child should return to her mother but spend time with the father.

9. Dr A sought the opportunity to speak to either the Principal or the School Counsellor at the child’s school, in the period of the adjournment, and I made an order allowing that and providing for Dr A to present a further report as to any discussions she might have with those persons.  Dr A was, in fact, able to speak to the Principal, and she has provided an oral report as to that conversation.  She also took it upon herself to speak to Families SA, both with their central office and also with the local office where the files in relation to this matter have been kept.

10. Dr A also provided some feedback from her supervisor, Ms P, as to what Ms P observed and overheard when the child was collected by the mother from the childcare service at this Court last Wednesday. 

11. I should add that other recommendations made by Dr A on the last occasion were that it was imperative that these parties be assessed by a relevant expert in relation to their appreciation of child focussed parenting, and Mr F was recommended to undertake that task.  Dr A made some enquiries of Mr F’s availability and apparently he can undertake this task on 1 June 2010.  Since then I have received information from Dr A that it can take place a week earlier than that, namely 25 May 2010.

12. I mention now that there is an issue about funding with that exercise.  Mr Croft, the Independent Children’s Lawyer, has or is about to make a submission to Legal Services Commission that they cover the costs of that assessment.  It is an expensive exercise, apparently in normal circumstances it would cost each party $1000 each. The parties would find it extremely difficult to fund that exercise privately, but it may be, as I say, that Mr Croft has some success with Legal Services Commission.  And indeed it is important because Dr A has even recommended that this exercise is so essential to an understanding of what is happening in the lives of the parties and the child that the trial should be delayed for this exercise to be undertaken.  I will come back to that in terms of any orders that I make.

13. The other recommendation made by Dr A on the last occasion was that the child commence counselling with someone like Mr PE or his fellow psychologist, Ms LS.  I referred to that in my reasons for judgment on the last occasion and I will not repeat it.  Unfortunately though, neither Mr PE or Ms LS are available in the short term.  Dr A has advised the Independent Children’s Lawyer of other persons that she recommends in the same category but the Independent Children’s Lawyer has not yet had a chance to follow that up.  Fortunately there is not an issue of cost with that exercise because that can be covered, but the issue is the availability of someone to do it.  Again, I will come back to that in terms of any orders that I might make about that in a moment.

14. I do not propose to repeat everything that Dr A has said today.  In summary though, she has provided a further cautious recommendation in light of the further inquiries that she has made and she having also read the affidavits that have been tendered.  Her cautious recommendation is that the child remain living with the father and spend time with the mother on an interim basis pending trial or pending, at least, the involvement of Mr F, because, as I say, her recommendation is to delay the trial until Mr F can undertake the task that I have already referred to.

15. Importantly for Dr A, in making that recommendation, it seems that she has relied on what the Principal has said to her about his assessment of comments made by the child and the timing of those comments, and particularly that they are made after the child has spent time with the mother. The Principal is concerned about whether there is coaching of the child.  With Families SA the feedback from them is something we knew anyway, which is that there have been numerous notifications in this matter including a number in the last three months or so. However, Families SA have taken the position that there is nothing of concern arising from any of those notifications and they have not acted on any of them.

16. In terms of what Ms P informed Dr A of, Ms P apparently overheard the child say to her mother something to the effect that it was good talking to her on Facebook.  The importance of that will become relevant in a moment. 

17. Thus, that is a brief summary of the report of Dr A and her recommendation.  It now falls to me to decide what should happen on an interim basis in terms of the living arrangement of this child.  There is, of course, an ongoing order which is the order of 16 July 2009.  Both parties now have applications before me to vary those orders by in effect suspending the time that the other of them is to spend with the child, pursuant to those orders.

18. Dealing with the father’s application, it is, as I say, that the child live with him, and that there be no time spent between the child and the mother pending trial.  Alternatively, that if there is to be time spent with the mother that that should be supervised through the Children’s Contact Service.  From the mother’s point of view she seeks suspension of the time that the child is to spend with the father.  That would leave, of course, the child living with her.  Her second position, if you like, or fall-back position is that, if there is to be time spent between the father and the child that that be on alternative weekends.

19. It is clear to me, and I have said as much, that if there is to be time spent, the issue that needs to be addressed is the place of handover.  It seems that the only place that that can realistically occur, even though there have been problems with that as well, is at the school.  Of course, if there is supervised time then that would solve that issue as well.

20. Perhaps I should say this though, one of the primary reasons for there being no time or the least supervised time on the father’s case comes from comments made by Dr A, but the issue was apparent anyway, and it is the allegation that the mother is coaching the child.  The answer to that is either to cease time spent so that there can be no coaching, or if there is to be time that it be supervised so that there can be a monitoring of what is said between mother and child.

21. From the mother’s point of view the primary reason for seeking an order that the father’s time be suspended is what she reports the child saying to her and to others about the father, for example, hitting the child and placing his hand over her mouth so that she cannot breathe and behaving inappropriately towards her and causing her distress and trauma. 

22. The Independent Children’s Lawyer has adopted an understandable course, and that is to support the cautious recommendation of Dr A insofar as it is proposed that the child remain living with the father.

23. In terms of the child spending time with the mother, Mr Croft’s position is that he, in a sense, supports supervised time for the reason that it monitors what is said between the child and the mother, but equally the child has a good relationship with the mother and I need to address the maintenance of the meaningful relationship.  That might only be able to be done by having unsupervised time and for example, on alternate weekends.  Thus they are the parameters of the dispute that I have to decide on today.

24. Now, in terms of where this child should live, as far as I am concerned it is in the best interests of this child to resume living with her father.  Mr Reynolds has made forceful submissions as to why that should not be the case, and particularly that his client’s case is that no-one is listening to what this child is saying.  This child does not want to spend time with her father because of his conduct towards her and for the court to in effect return the child to the father that will be saying to the child that no-one believes her.

25. He has further made the submission that everyone in this case seems to be locked in the past as to the issue of coaching of the child by the mother.  There have been findings to that effect, and indeed, there have been two trials in this matter where the allegations of the mother, of a similar nature to those which are now being made, have been addressed and not accepted by the Judge, and it has been found that the mother has coached the child.

26. Mr Reynolds says that does not say anything about what is happening now and it should not mean that the child is not now making genuine comments and telling the truth and is not subject to influence or coaching by the mother.  For my part though I do not accept that submission.  As the Judge hearing this matter the comments that I have made of recent times as to my preliminary view that the child is being coached by the mother is founded on current facts and current circumstances and on my interpretation and inferences from the affidavit material that has been placed before me.  I remain of that preliminary view, and indeed what I have heard today reinforces that view.

27. It is a preliminary view though, and I stress that it is based on the affidavit material that I have read, and the submissions that I have received, and of course that view may change in the fullness of time and when there is the opportunity for cross-examination and further evidence to be presented.  I can only form a view, and as I say it is a preliminary and tentative view on the basis of what I have before me at the time.  Further indications today in support of that view are what the Principal has reported to have said to Dr A as to his assessment of what the child has been saying to him and how it is said and the timing of it, and also what Ms P has said to Dr A.

28. With the order that I made on 19 February 2010 suspending all previous orders in favour of the mother spending time with the child to enable Dr A to interview the child, my intention was to prevent any influence by the mother, but that has not turned out to be the case.  In my view the mother has been communicating with the child in that period of time and certainly by the medium of Facebook, and the fact that she has been communicating with her is also borne out by paragraph 6 of the father’s affidavit tendered to me today.

29. Thus I have no confidence that what the child said to Dr A and as reported on last week is free of influence and coaching by the mother.  Indeed, the reverse.  It is my preliminary view that the influence that the mother has brought to bear upon the child is palpable and has continued.  That is nothing less than emotional and psychological abuse of this child, and I am not prepared to put the child back into that milieu by providing for the child to live with the mother.  The child needs to be back with her father.

30. The issue though is how to curb the influence that the mother obviously wields and conveys to the child, and that is, of course, the basis of the submission to me that there should either be no time spent or at least supervised time.  This is the difficult issue for me.  The child has a good relationship with her mother.  The family consultant recommends that the child continue to spend time with her mother.  It may be that there is no answer to how the mother’s influence upon the child can be curbed whatever order is made.  Now that may or may not be the case, but what I have to balance is the need for the child to have a meaningful relationship with her mother with the psychological harm that the mother is causing to the child by virtue of what seems to me to be emotional abuse.

31. What I say about that of course needs to also be tempered by the fact that I do not have complete information before me, there has been no cross‑examination, there has been no testing of the allegations, there is no expert evidence before me in any fulsome way, and that creates a difficulty in what I can find and what view I can form, and not solely for that reason, but with that circumstance influencing me greatly, I am prepared to allow the child to spend time with the mother.  The issue then is whether it should be supervised or unsupervised.  Certainly if it is unsupervised all I am prepared to do is provide for it to be alternate weekends with handovers at school, at the conclusion of school on the Friday and commencement of school on the Monday.

32. With supervision there are a number of issues.  First of all, we do not know whether the Children’s Contact Service will be prepared to supervise.  Obviously that can be solved by an inquiry being made of them, but I am not confident that that will solve the problem.  As Mr Croft has highlighted, knowing that she is being observed and monitored, it would be unlikely that the mother would say anything to the child or attempt to influence the child or coach her in that scenario.

33. The mother obviously has other avenues to speak to the child, Facebook, for example.  Thus I propose to make orders by way of injunction in an attempt to prevent that occurring, but the history of this case gives me no confidence of being successful in that regard.  Thus frustrated as I am at the moment in terms of where this case sits and my options and what I can and cannot do about my preliminary view of the influence of the mother upon the child, I propose to allow unsupervised time.  However, the mother is on notice and I might have said this before, but if there is any other occasion of the child not returning to the father after a period of time with the mother, then supervised time at the very most is what will be introduced.  Indeed, the mother is at serious risk, if what has happened in the past continues, of the balance moving the other way, namely, no time being spent between mother and child. 

1. As to whether there is influence or not, I will have to leave that for the trial, and maybe Mr F will provide some insight to that, or maybe Dr A, who will remain as the family consultant, and who will be providing an updated report, can further elucidate that, but the mother is running out of chances in this case. Nevertheless, I have to put the best interests of the child first and to repeat, she has a good relationship with the mother and I do not want to penalise the child because of the actions of the mother.  But it will not take much for that view to change if the mother continues down the path that she has started.

2. All right.  The next issue - and I will need some further submissions about this - is setting that up.

3. I have interrupted making my orders to raise with counsel any further injunctions that are sought by the parties in this matter.  Mr Charman has taken up something that I have raised early on, namely, the prospect of an injunction restraining the mother from communicating with the child during the time that the child is with the father.  Mr Reynolds opposes that injunction.  He says the existing injunction should be sufficient.  Mr Croft supports such an injunction.  For my part, this is an important issue and although there may be issues about enforcement and the like, I think it is important enough to put such an injunction in place.

I certify that the preceding 36 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 10 March 2010.

Associate