Deakin & Parry

[2009] FamCA 252

FAMILY COURT OF AUSTRALIA

DEAKIN & PARRY [2009] FamCA 252

FAMILY LAW – CHILDREN – Interim parenting orders – Time spent with the Father – Supervision of time spent – Neutrality of supervisor – Father’s partner found to be appropriate for interim supervision

FAMILY LAW – PROPERTY – Modest pool – Adjourn issues to trial

APPLICANT: Ms Deakin

RESPONDENT: Mr Parry

FILE NUMBER: BRC 7391 of 2007

DATE DELIVERED: 19 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 19 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page of Senior Counsel appeared for the Applicant Mother

SOLICITORS FOR THE APPLICANT: Bell Dixon Butler, Solicitors

COUNSEL FOR THE RESPONDENT: Mr Parry appeared on his own behalf

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Suthers, Solicitor, of Suthers Solicitors appeared for the Independent Children’s Lawyer

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Father spend time with the child, A, born in 2001, every Saturday from 9:00 am until 5:00 pm in the presence of Ms G with Ms G to collect and return the child to the Police Station at B. 

2. All other previous Orders in relation to the Father spending time and having telephone communication with the child are to be suspended.

IT IS ORDERED THAT:

1. The proceedings be adjourned for trial directions and case management review to 10.00 am on 11 June 2009 at the Brisbane Registry of the Family Court with leave given to the parties to attend by telephone.

2. The proceedings be listed for trial for three days commencing 21 July 2009 at 10.00 am in the Brisbane Registry of the Family Court.

3. Either party given liberty to apply on forty-eight (48) hours notice to the other party in writing.

4. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7391 of 2007

MS DEAKIN

Applicant

And

MR PARRY

Respondent

REASONS FOR JUDGMENT

1. The parties to this litigation are the parents of a young girl, A, who was born in 2001.  The litigation commenced in November 2005, some six or eight months after separation.  It has continued unabated for approximately three and a half years.

2. Still the parties litigate and dispute over children’s issues and other issues including a very modest pool of property with allegations of undisclosed sums of money and other hidden assets.

3. The litigation has occurred principally in the Federal Magistrates Court.  In October last year Burnett FM transferred the matter to this Court and there have been some appearances before Registrars but this is the first date for what is known as the less adversarial system.

4. I would say that by and large the less adversarial system has had modest success, in some cases better than that but there are some matters where a Judge comes to examine the history, they are found to be singularly inappropriate to go through the less adversarial system.  I am persuaded that this is one such matter.

5. There are numerous allegations and counter-allegations.  I have read the reports, I have scanned the affidavits, I have not had the opportunity to peruse in detail the whole history of this matter but I can certainly say that the conduct of the litigants has at times been such that it would be open to criticism.

6. The Court notes that there has been a report previously by Dr M, annexed to an affidavit of 10 July 2006.  Dr M had interviewed the father on 20 June and the mother on 21 June.  At page 5 of her report in summary of the father she says:

   “At interview he was garrulous and somewhat controlling.  He displayed some anxiety and on occasions was tremulous.  He did not present with depressed mood at interview but describes four or five months history of depression.  It appears that in normal circumstances he may exhibit some hypomania.  He was disinhibited in relation to sexual matters.  He was pleasant and cooperative.  He has exhibited, according to his account, considerable drive throughout his life with high energy levels and according to an email shown to me by [the mother], has acknowledged bad moods which may have been depressive in nature.  However there was no clinical evidence of bipolar affective disorder or any other psychiatric diagnosis.  His history does not at any stage indicate the profile of a sexual abuser of children.”

7. The mother commenced her interview with the doctor by questioning that she had the capacity as an outsider to adequately assess the situation as a result of an hour’s interview.  The mother gives an explanation and it is to be borne in mind this interview is in June of 2006, coming on for three years ago; she said:

   “Four days after he returned to Australia he had [the child] on her own on the boat.  When she returned from this contact visit [the child] was lying on her back touching her genitals and said to her mother “won’t you touch me?”  When the mother refused she said “daddy did it”.  The mother said she found it hard to believe this and said to the child “are you tricking me?”

8. And then the mother goes on with details of what she says the child told her.  In her summation of the mother Dr M says:

   “At interview she presented as initially wary but in fact was pleasant and cooperative throughout the process; her mood was appropriate, she appeared to be of above average intelligence.  There was no disorder of thought or perception.  She related warmly and appeared empathic which would make a diagnosis of autism or Asperger’s syndrome extremely unlikely. Of interest in her history is her history of anorexia following perceived rejection by her father and her pattern of sexual attachment to older men.  Whilst there is no history of sexual abuse as a child it is possibly significant that she had a relationship with a school teacher on leaving school.  I feel that there are some unresolved issues which lead her to form sexual liaisons with father figures but obviously this is something which would need rather deeper exploration than is possible in a session of one hour.  It is reasonable to assume that her history would lead to difficulties selecting appropriate sexual partners…”

9. The Court was also referred to a recent report by Mr Y, an experienced social worker who regularly prepares reports in this jurisdiction for both the Federal Magistrates Court and this Court.  Mr Y says, at paragraph 55:

   “There is a distinct sense that the mother will be most reluctant to ever settle into a regime of semi-supervised and unsupervised contact.”

10. I would point out that my understanding of the evidence is that the father has had unsupervised time with the children since May, pursuant to Court orders, which in fact were tantamount to consent orders, after Dr M’s report of June 2006, so there were allegations of sexual abuse in existence at that time, notwithstanding that, consent orders had been made.

11. The father is upset that the orders have not been complied with and he has brought numerous contraventions against the mother.  Some of those contraventions have been found to be established by Slack FM.

12. Once the matter came into the less adversarial trial process the family consultant, Mr F, was appointed and he did an assessment of the parties and he saw each of the parties with the child in mid‑December last year.  His summary refers to the father’s attitude towards supervision and says it leaves the Court to determine an all or nothing approach to a structure. 

    “The Court will be considering issues of loss for [the child] should adverse findings be made against the father.  [The child] is clearly bonded to him, his absence in her life is likely to cause her confusion and distress.”

    He goes on to observe:

    “Supervision is also a restrictive structure for a child.  It limits the scope for the development of a meaningful relationship in that it does not allow a child to receive much hands-on care from a parent.  The child is less likely to know and trust that parent as a care giver.”

13. He does not recommend any further reports.  He suggests that the report of Mr Y be relied on at any hearing but he does recommend an updated psychiatric assessment.

14. In that regard the legal representative who appears on behalf of the child, Mr Suthers, has pointed out the existence of Dr M’s report and no-one seeks, at this point in time, for an updated psychiatric evaluation.

15. There is a 25-year age gap between the parties which I regard as a significant factor.  We come across this type of situation not infrequently and it can be on occasions, particularly if the male is the older party, a sign of a controlling relationship.  I am not saying that it is in this case but it is not infrequently to be observed.  As I understand it the wife is currently 35 and the husband is 60.  They cohabited from about January of 2000, they married in August of 2001 in B and they separated in March of 2005.  As I said, they have been litigating more or less ever since.

16. I really wish they would stop litigating and I say that principally for the child’s sake and the child makes that position loud and clear that she would like her parents to be able to get on.  For present purposes I accept the inevitability that that is unlikely to occur.

17. The mother currently resides in B and she has the child in her care.  I understand that A is her only child. 

RECORDED NOT TRANSCRIBED

1. The father, as I have said, alleges numerous contraventions of the orders by the mother.  The mother claims, presumably, that she has had reasonable excuse for her conduct.  I do note that there have been contraventions established by the mother and that they have been dealt with by Slack FM.  The father says there are numerous contraventions to come.

2. At the present time the father is not seeing his daughter.  There are unresolved issues of sexual abuse as I understand it but the father’s assertion is that these have been around before and dealt with previously and these allegations are in no different category.

3. The mother’s other concerns include the father may denigrate her to the child.  Having dipped into the material and heard from the father I would assess there are prospects of that.  Of course the mother can do the same but I think she would be probably less likely to do so but that is a guess at this stage.  She says the father may engage in emotional abuse of the child by shouting at her and controlling her and behaving inappropriately and her greatest fear apart from the allegations of sexual abuse, would be that he would withhold the child and fail to return her in compliance with any arrangements.

4. The father says that his threats in this regard are essentially a tit-for-tat exercise that if she is not complying why should he.  I simply caution both parties that when you are in the jurisdiction of my Court I expect compliance with orders and arrangements and I deal with any contraventions seriously, most seriously. You will be judged on your behaviour between now and the final hearing date.

5. If, for example, the father held over or took the child away for any period of time he would do untold damage to his cause.  I am mindful of his allegations and that I have not investigated the allegations or the claims of reasonable excuse but I am informed that the mother will be contesting those contraventions and time will tell.

6. At the present time the father is in a relationship with Ms G who lives in B.  She says that the father resides with her for approximately two weeks in three, the balance of the time he is in Brisbane.  When he is in Brisbane he resides on his yacht.

7. The father says in support of his case he has three children from an earlier marriage.  Those children are all adults and in turn they are married with children and he has a close relationship with his children and grandchildren.  It is one of the reasons he wishes to pursue this is to be able to introduce the child to her siblings and to her nieces and nephews.

8. As I say, I am reluctantly satisfied that the matter is intractable and should go straight to a hearing.  I do not see any point in ordering a further psychiatric assessment; in my view most times it comes out as more of the same.

9. There were allegations in the past where the father was challenging paternity.  He does not persist with this claim so the Court need not trouble itself in that regard.  The father was refusing to accept that any time he spends with his daughter should be in the presence of another adult.  It matters little what terminology is used, the effect is the same and we all know why it is there.  He asserts it is the mother who has been in constant non-compliance, he has always been compliant with Court orders, he has never done anything wrong and he should not be punished but rather the mother should be punished and punished severely.

10. The father had asserted that if his time with the child was to be supervised that he would refuse to accept that ruling and simply walk away from the child’s life.  As I pointed out during the course of the hearing earlier today, that is a matter for him.  I take account of his attitude but the Court will make its decision based on the evidence and based on what is considered to be in the best interests of the child.

11. The father’s attitude thereafter is totally a matter for him but I think it would be a very sad day if he had the opportunity to have any time with his daughter, that he would not avail himself of that.  I make no further comments about what the outcome will be. 

12. The Court is assisted by the appointment of Mr Suthers, as the independent children's lawyer and the Court is grateful for his position, standing in the middle of this intractable dispute.  The Court has also benefited by the fact that as I understand it he has been in from the beginning and so has quite a comprehensive knowledge of the litigation history.

13. The father is not legally represented; the mother is represented by Senior Counsel. 

RECORDED NOT TRANSCRIBED

1. I propose to set this matter down for hearing in July.  It is time, in my view, that this matter was resolved by way of judicial determination once and for all.  I will deal with the property issues such as they are, but they do not seem of great moment – and I am not being in any way critical or cynical – but again, the father’s position of asserting, as I understand he asserts, that it should be 100 per cent to him and nought to the mother, certainly would not be in accord with most decisions in this Court over the years, in fact over the years I do not think I have ever seen a result which had that effect.

2. I would ask the parties to consider negotiating between themselves in the meantime in relation to mutual orders that, regardless of whatever rights they retain after the trial, that they will not initiate further proceeding unless the leave of a Judge is obtained.  I have the power to make such orders because often in these disputes there is a sense that the parties litigate, in the sense that any form of communication with the other party is better than no communication, no contact; it is called negative intimacy and parties do engage in it.

3. The wife, as I understand her position, says the father is a narcissistic, controlling individual, who is using the litigation to harass her and punish her for leaving the relationship.  The father says she has psychiatric issues, she is the one constantly flouting the orders of the Court, she is the one who should be dealt with.  I appreciate that is bordering on a gross generalisation, but it gives an indication of the scope of the dispute.

4. On today’s date the father concedes he will accept an arrangement whereby his time with his daughter will take place in the presence of another adult.  He proposes Ms G.  I understood that the mother’s proposals at all times were for two supervisors.  I had Ms G give evidence briefly today.  She has been a counsellor on a part-time basis in B; she is a holder of a Blue Card, she is the mother of three adult children and she raised her deceased sister’s two boys.

5. I have to say I was impressed by her as someone who would not allow herself to be in any way overawed or intimidated by the husband.  I am satisfied she would not allow the child to be exposed to any inappropriate conduct on the part of the husband.  I note the submissions by Senior Counsel for the mother that supervisors should be neutral.  I accept that that is always the preferred course but I note that these orders will only be in place for a period of some three months, four months.  Whilst it is preferable for a neutral person, nobody else is put forward.  I am satisfied that in terms of protective measures, Ms G will carry out such measures.

RECORDED NOT TRANSCRIBED

If at any time she has to report anything she has said that she will do so if there was any adverse behaviour by the father.

1. I turn to consider the proposals.  What I am proposing is one day a week from 9 until 5.

RECORDED NOT TRANSCRIBED

All right, that is to commence this Saturday, the father is to spend time with the child from 9.00 am Saturday until 5.00 pm Sunday.

RECORDED NOT TRANSCRIBED

Sorry, force of habit, thank you for pointing that out; 9.00 am until 5.00 pm Saturday.

1. What I would propose is that Ms G collects the child from the mother’s residence and returns her to the mother’s residence.

RECORDED NOT TRANSCRIBED

I am normally reluctant to make it the local police station but there is the Police Station in B, the child to be dropped off there and collected there.

RECORDED NOT TRANSCRIBED

She is to be collected by Ms G and returned by Ms G, all right.

RECORDED NOT TRANSCRIBED

So the mother can do the driving effectively if she lives 20 kilometres out of town.

RECORDED NOT TRANSCRIBED

1. Now what I am minded to do is make sure that these orders are working, I will give it a date, say, in late April and the parties can attend by phone.  I will do a phone hook-up on that date and then at that time I will issue trial directions and the trial directions you can turn your mind to are you file a document setting out with precision what orders you are seeking and then you seek orders in the alternative. 

RECORDED NOT TRANSCRIBED

1. I will set this matter down for 11 June for mention, it is longer than I hoped but I will give either party liberty to apply on 48 hours’ notice so the matter can be relisted before me if there is non-compliance with these Court orders and I will see what the problem is and endeavour to have it resolved.

2. The trial dates will be July, that is Tuesday, Wednesday and Thursday of that week.

RECORDED NOT TRANSCRIBED

1. Those orders are not operative, I will suspend any other orders for a time.

RECORDED NOT TRANSCRIBED

1. In view of the fact that you are seeing the child every week I will suspend the order for phone contact.

RECORDED NOT TRANSCRIBED

1. The order is at all times that Ms G is to collect the child at 9.00 am each Saturday from outside the police station at B – this will be over Easter, the whole time.  She can have a witness but it is not to be the father, she can bring along somebody else if she wishes to, the mother can do likewise but I would hope that they would behave as adults and with dignity.  Thereafter any time the father spends with his daughter is to be in the presence of Ms G.

RECORDED NOT TRANSCRIBED

1. Orders for spending time with and telephone contact are the ones that have been suspended, all other orders can remain in place, I will make that clear when the orders issue.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  19 March 2009