Donaghey and Donaghey (No 2)

[2011] FamCA 255

FAMILY COURT OF AUSTRALIA

DONAGHEY & DONAGHEY (NO 2) [2011] FamCA 255

FAMILY LAW - CHILDREN – where the child was recovered over two months after Orders provided for the delivery of the child from the mother’s care into the father’s – where Orders provided for a suspension of time between the mother and the child to allow the child to settle into his new living environment – where that period had expired by the time the child was recovered – where father applied to have period of no contact between the mother and the child extended – whether period of no contact should be extended – where order made for no contact between the mother and child for a specified period.

Family Law Act 1975 (Cth)

APPLICANT: Mr Donaghey

RESPONDENT: Ms Donaghey

INDEPENDENT CHILDREN’S LAWYER: Ms Fotheringham

FILE NUMBER: LEC 85 of 2007

DATE DELIVERED: 6 April 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 6 April 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Cook of Christopher Hughes & Associates

COUNSEL FOR THE RESPONDENT: Ms Farr

SOLICITOR FOR THE RESPONDENT: Vince Boss Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Qld, Southport

Orders

IT IS ORDERED THAT

1. The following parenting orders are made in respect of the child the subject of these proceedings, J born … August 2004 (“the child”).

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The matter is adjourned to 10am, Monday, 11 July 2011 before the Honourable Justice Murphy in the Brisbane Registry of the Family Court of Australia.

2. Paragraph 3 of the Orders dated 19 January 2011 is discharged and included in lieu is a notation that, consequent upon a Recovery Order being issued by this Court on 21 January 2011 and other orders of this Court, the child was delivered into the Father’s care on 27 March 2011.

3. Paragraphs 4, 5 and 6 of the Orders dated 19 January 2011 are discharged and in lieu it is ordered that the mother shall spend no time, nor communicate in any form, with the child before 4pm, Friday, 29 April 2011.

4. The parties shall do all such things, sign all such documents and pay all such fees reasonably required so as to facilitate time in accordance with these Orders being supervised by Contact Centre 1.

5. The child shall spend time with the mother at all such times as might be agreed in writing by the mother, the father and the Independent Children’s Lawyer and, failing such agreement, at Contact Centre 1 as follows:

   a.As and from Saturday, 30 April 2011 and each alternate Saturday thereafter for a period of two hours; or

   b.In the event that Contact Centre 1 is unable to facilitate time on that date, from the first Saturday on which the Contact Centre is able to so facilitate contact and each alternate Saturday thereafter for a period of two hours.

6. Paragraph 7 of the Orders made on 19 January 2011 is varied to include an additional subparagraph as follows:

   a.It is respectfully requested that the Family Consultant, Ms B prepare a short written report in respect of such supervision including observations of:

   i.Any interactions between the child and each of his mother and his father; and

   ii.The child including his current psychological and emotional state.

   It is respectfully requested that Ms B be available to give oral evidence before the Court from 10am, Monday, 11 July 2011.

7. Paragraph 8 of the Orders made on 19 January 2011 is varied by substituting Saturday, 30 April 2011, in lieu of Saturday, 10 February 2011.

8. Orders 9 and 10 of the Orders made 19 January 2011 are discharged.

9. Order 13 of the Orders made 19 January 2011 is discharged and in lieu thereof, it is ordered that the Independent Children’s Lawyer remain in the proceedings.

10. Costs of and incidental to the application filed on 1 April 2011 are reserved.

IT IS NOTED that publication of this judgment under the pseudonym Donaghey & Donaghey (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 85 of 2007

Mr Donaghey

Applicant

And

Ms Donaghey

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 19 January 2011, I made orders and delivered extensive reasons in respect of a difficult parenting matter in which the mother gave evidence that she firmly believed that the child the subject of those proceedings, J (… .08.2004), had been subjected to sexual abuse at the hands of his father. 

2. As will be clear from the reasons given at that time, I made a number of findings to the effect that the father did not present any such risk to J.  Other findings made by me at the time were consistent with concerns that, in fact, J may have been subjected to emotional abuse at the hands of his mother, emanating from the belief system to which I have just referred. 

3. Ultimately, orders were made on that day that placed J into his father’s care, and an order that J lives with his father was made.  In order to give effect to that order, I further ordered that the mother present J to the manager of the Child Dispute Services at this Court on a nominated date, two days after the decision was given.  Thereafter, I provided that there should be an interregnum so as to allow J to settle into his father’s care, and, as a result, I ordered that there be no time or communication between the mother and J for a period of approximately two weeks or so, so as to facilitate that result. 

4. Thereafter, I provided that there should be time spent between the mother and J on a supervised basis for a period of approximately four or five weeks for two hours, each alternate Saturday, and, thereafter, supervised time between 9.00 am and 5.00 pm on the first, second, and fourth Saturdays of each calendar month.  After a period of approximately 12 months, time between J and his mother was to be unsupervised in accordance with the terms of the orders made that day.

5. The orders, and the reasons, envisaged significant difficulties likely to be experienced by the mother as a result of the orders just referred to.  With that in mind, the orders also provided for there to be supervision by a family consultant within the terms of section 65L of the Act.  It is, I think, important to repeat here what was said at that time, so as to give context to the mother’s subsequent actions, and to the Application in a Case which was filed by the father on 1 April 2011 resulting therefrom.

6. At paragraph 230 of the reasons for judgment, I said this:

   The mother’s belief is, I think, genuine, but it is also entrenched, and on her own admission, not susceptible to change.  There is then an element of “wilful blindness” about it.  Where a finding can clearly be made, that there is such an element in a belief system, combined with an adamant refusal to countenance any attempt, including through counselling, that might seek to challenge those beliefs.  The application of the principles relating to the role of “genuine belief” is in any event, in my view, called into question.  That can be seen from the breadth and multifaceted nature of the enquiry envisaged by the Act in determining best interests.

   Here, given the nature of the relationship between the mother and child, the mother’s entrenched beliefs that have been referred to many times throughout these reasons are an important consideration, but I do not regard it as decisive.

7. In flagrant breach of the order made by me on 19 January 2011, the mother failed to present J at the date, place, and time nominated. 

8. Thereafter, it was necessary for the father to make a number of applications to the Court, and orders were made by the Court on 19 January, 21 January, 4 February, and 7 March 2011. 

9. During the whole of the time from the date that the orders were handed down until 27 March 2011 ‑ that is, a period of approximately two months ‑ the whereabouts of J and the mother were unknown. 

10. It is plain, on the evidence before the Court, that the father had taken a number of very significant steps designed to ascertain the mother and J’s whereabouts.  They included enlisting, via Court orders, the assistance of the Australian Federal Police and the Queensland Police. The father’s actions included hiring a private investigator.  Furthermore, a number of orders were made by the Court, including publication orders, designed to assist in ascertaining J’s whereabouts.

11. An affidavit by the father filed 1 April 2011, details those attempts and summarises those orders. 

12. The father deposes that, on 24 March 2011, the Town 1 Daily News published a media release, consequent upon the publication order made by the Court, which requested the public’s assistance in providing information in relation to J’s recovery. The father thereafter deposes to what he knows of the circumstances surrounding J’s recovery.  He says “I have only… fairly sketchy details of the immediate circumstances leading to J’s recovery.”

13. The father deposes to receiving a telephone conversation from a police officer at Town 2.  (It might be observed that during the course of the trial, and prior to the unilateral actions of the mother, on or after 19 January, the mother and J had been residing in northern New South Wales.)  The evidence before the Court, at the time of the trial, indicated no relationship with the Town 2 area.  The affidavit by the father thereafter refers to the circumstances in which J came into his care, which ultimately occurred in the early hours of the morning at the Town 3 Police Station on 27 March 2011. 

14. Since 27 March 2011, J has been in the care of his father.

15. Within a week or so of that occurrence, the father filed an Application in a Case accompanied by an affidavit in which he seeks a number of orders.  It is, I think, appropriate to repeat those orders in these reasons:

    1.That all necessary times for the hearing of this Application be abridged and the Application be heard ex parte;

    2.That the Father and his Lawyer have leave to attend the hearing of this Application by telephone.

    That until further Order:

    3.That Orders 5 and 6 of the Orders of 19 January 2011 be suspended;

    4.That [Ms Donaghey] (“the Mother”) spend no time, nor communicate with [J] born […] August 2004, (“the child”) including not approaching his place of residence from time to time, or school;

    5.That the Mother use her best endeavours to ensure that no member of her family spend time with the child, or communicate with the child, including not approaching his place of residence from time to time, or school;

    6.That [Professor Q] prepare an Addendum to her Reports dated 15 November 2010 and 9 December 2010 respectively, and to include but not be limited to whether or not the Orders for the Mother to spend time with [J] as set out at Orders 4, 5 and 6 of the Orders of 19 January 2011 are appropriate, and in the child’s best interests, in the light of the circumstances arising and existing since the date of those Orders;

    7.That the initial responsibility for the payment of [Professor Q’s] fees be determined by agreement between the Independent Children's Lawyer and the Father, and otherwise be reserved.

    8.That the discharge of the Independent Children's Lawyer pursuant to Order 13 of the Orders of 19 January 2011 be suspended;

    9.That the Mother pay the Father’s costs of and incidental to this Application on an indemnity basis;

    10.That the Orders resulting from this Application be deemed to be served on the Mother by serving the Orders on [Ms BF], or at the Mother’s place of residence at [B Street, in B], in the state of New South Wales.

16. The effect of the orders sought by the father is an immediate suspension of the time between J and the mother.  In terms, those orders seek no resumption of that time.  It will be seen that the orders also seek an order that Professor Q, who prepared reports and gave evidence at the trial, prepare a further report. 

17. The solicitor for the father is quite frank about the circumstances in which those orders are sought.  In essence, she submits that the father does not have, as it were, any concrete view or position with respect to either time or the rapport.  Rather, the application is made in circumstances where, in the protracted and difficult circumstances of this case, the father essentially seeks “guidance” from the Court in respect of those orders that might best meet J’s best interests in those circumstances.

18. The mother was served personally with the application and affidavit on 4 April 2011 at B.  It might be noted, then, that at the time of service the mother was again present in northern New South Wales (as distinct from Town 2 or any other area in western Queensland). 

19. I should add, that in the interim period, a component part of the remedies sought by the father was a requirement that the mother’s sisters, each of whom gave evidence at the trial, subject themselves to questioning about J’s or the mother’s whereabouts.  On 21 February 2011, Forrest J made orders designed to facilitate the provision of information from Commonwealth Statutory Authorities and the like, and furthermore made orders that the mother’s sisters just referred to, “Give evidence before the Court to assist in the disclosure of whereabouts of the said child and the mother, at 10 am on 7 March 2011.” 

20. Subsequently, each of those women appeared before me on that date, at which time they were each cross-examined by the counsel for the Independent Children’s Lawyer, and briefly by the father, and at which time I also asked questions of them. 

21. There is in my mind a very high index of suspicion, that one or both of those women were involved to one degree or another in J’s disappearance. There is also a very high index of suspicion in my mind that either or both of them may have been actively so involved. 

22. However, I am acutely aware of the gravity of any such finding, including the potential for criminal prosecution. On the evidence before me, at that time and now, I am unable to make any specific finding in that respect. I make it clear that if cogent evidence pointed firmly to that conclusion, I would have no hesitation in referring the papers for consideration of the laying of criminal charges.

23. I should record, for the purposes of accuracy and to give full context to these proceedings, that, subsequent upon the appearance of each of those women before the Court, and prior to any other matter coming before the Court, there was discovered surrounding the witness box after the evidence of each of those women, a number of very small pieces of paper in the nature of what might be described as confetti.  Those very small pieces of paper measured approximately six millimetres by two millimetres.  On each and every piece of paper was typed the word “Jesus”.  It is not known how those pieces of paper came to be sitting in and around the area of the witness box, consequent upon the giving of evidence by Ms BF and Ms MF.

24. The basis for the application made by the father is, to my mind at least, obvious.  If punishment of the mother for what is quite disgraceful behaviour was to be the criteria for the orders to be made by this Court, then the result would be that she would be hard pushed to spend any time whatsoever with her son.  She made it plain during the trial before me, that she would not be persuaded by anyone (other than herself, as it were) in respect of any belief which she held.  And she also made it very plain that, she would not accept any decision by the Court. 

25. Ms Farr, who appears for the mother today, submits that, given that the mother was served on 4 April, that she has not had an opportunity to respond to the affidavit filed by the father.  So much is clearly true, and no criticism is directed toward the mother, or those who represent her in those circumstances. 

26. Ms Farr also submits that the mother’s instructions are that her (the mother’s) reaction was an emotional reaction to the orders that were delivered by the Court, and in that sense, that she allowed her emotions to rule her better self. 

27. Given that the mother has not filed any material, I make no specific findings with respect to that submission and the mother’s position as outlined.  However, it is necessary for me to point out that the mother’s stated position seems somewhat at odds with the evidence given clearly and unequivocally during the course of the trial before me.  In that respect, it is again, I think, helpful to record part of the findings made by me at the trial:

    250.For the reasons earlier identified, I consider it important that [J] be relieved for an initial period from being exposed to the maternal distress, likely to be extreme, caused by that decision.  I accept and agree with the opinion of [Professor Q], that the separation be kept to a minimum, a period of a few weeks. 

    251.It will be obvious that I do not consider that the distress will abate, either within that time frame or easily.  However, [J] needs to see his mother.  There is no doubt that in the long-term he will benefit from a meaningful relationship with her.  That said, [J] needs protection from any manifestation of the mother’s belief system and consequent anxiety.  He also needs time for his current beliefs to be replaced by his own experiences of his father.  I consider that this should occur in an environment which is attended by satisfactory protection from the mother’s beliefs and anxieties.  I consider that the time between [J] and his mother needs to be supervised for that reason.

28. In those paragraphs lies part of the rationale behind the orders earlier referred to, which provided for there to be a “settling in period” for J with his father’s care, and the consequent need, as I found it to be, for there to be a substantial period of supervised time between J and his mother. 

29. Ms Farr submits that, in essence, the regime contemplated by those orders should effectively commence as from today.  That is, Ms Farr submits that the supervised time provided for in the order should commence immediately, and that it should graduate in the manner contemplated by those orders.  The interregnum provided for in the orders is (it is implicitly submitted), provided for by the fact that since 27 March when J came into the father’s care, he has not spent any time with the mother. 

30. As I have said, if these proceedings were about punishing the mother for her disgraceful behaviour ‑ behaviour which, on the face of it, is totally contrary to J’s best interests, including absenting him from his father, absenting him from his usual place of residence, absenting him from his friends, social contacts, and the like – then this mother would be hard pressed to spend any time at all with her son. 

31. It is not well understood if media reports of the proceedings of this Court are to be believed, that these proceedings are not about the rights or wrongs of parents, or punishing or rewarding parents except insofar as those actions (or inactions) have a direct bearing on findings as to a child’s best interests.  Proceedings for parenting orders are, axiomatically, about the best interests of the child the subject of them, in the particular circumstances in which that particular child finds him or herself. 

32. I can see no reason why the events and circumstances just described abrogate the findings made at paragraphs 250 and 251 of the trial reasons, to which I have earlier referred.  That is, it seems to me to remain the case, based on all of the evidence before me at the trial, that, firstly, J needs to be protected from maternal distress.  Secondly, J needs to see his mother.  Thirdly, J needs protection from any manifestation of the mother’s belief system and consequent anxiety.  Fourthly, J needs time for his current beliefs to be replaced by his own consistent experiences of his father.  Fifthly, this should occur in an environment where he is protected from exposure to his mother’s beliefs and anxieties. 

1. That series of findings might point to a conclusion consistent with that advocated by Ms Farr.  However, it is not possible to ignore the facts and circumstances just referred to. Most importantly, it is not possible to ignore the potential for those facts and circumstances to have had a very significant impact upon J.

2. Contrary to that which was intended by the orders after a somewhat lengthy trial, and lengthy reasons, rather than J being exposed to his father and protected from the belief systems and anxieties of his mother, the events unilaterally engineered by her, have produced a yet further period of time in which J has been exposed to those beliefs and those anxieties.

3. But that has occurred, in addition, in circumstances where J has been away from the usual touchstones of his erstwhile life. Based on the findings made after lengthy consideration of that very issue at the trial, one can only imagine what was said between the mother and J in that intervening period.  During that time, those concerns are exacerbated by the fact that J and the mother were in effect “on the run” and, plainly on the evidence, attempting to secrete themselves from scrutiny by the Court and where the mother was, plainly, trying to prevent J spending time with his father – let alone live with him – in accordance with the findings and orders of this Court. 

4. It seems to me that those facts and circumstances point to a number of considerations crucial to J’s best interests.

5. First, it seems to me that the need for an interregnum so as to allow J to spend exclusive time with his father, not at all pressured or exposed to his mother’s anxieties, belief systems, and the like, needs to occur.  For that reason I propose to order that there be no time or communication between J and his mother for a period of a month from the time J came into his father’s care, that is, until about the end of April this year. 

6. Secondly, it seems to me that those facts and circumstances point to a reduction in the amount of time that might otherwise have occurred in a supervised environment in accordance with the earlier orders.  The reason for that can be seen in the outline just given. J needs – powerfully in my view, consistent with the findings made at the trial – to spend, as it were, untrammelled time with his father.  There is now, in particular, a consequent need for time with his mother, or rather exposure to his mother’s beliefs and anxieties to be reduced. 

7. Further, there remains the need for the time between J and the mother to be supervised until such time as the Court can feel confident that the mother’s beliefs and anxieties will not be communicated tacitly, overtly, or directly by the mother to J.

8. As a consequence the orders will, as I have indicated, suspend all time and communication between the mother and J for further period of about two weeks.  Thereafter, there will be somewhat limited periods of supervised time between J and the mother.

9. However, in line with the broader findings made at the trial it is in my judgment inappropriate to allow that situation to continue either indefinitely or, indeed, for any lengthy period of time. 

10. With that in mind, I propose to bring this matter back before me on 4 July 2011.  It will be noted that that is only about 10 weeks or so away. 

11. Within that time, if the application by the father is acceded to, there would be a report from Professor Q.  But, I am somewhat concerned about exposing J to yet more report interviews, although I accept it would be important for the Court to know what is happening in J’s world, as a result of the events and circumstances which I have attempted to briefly describe. It seems to me that, rather than a single expert providing a report, albeit a single expert with experience, training, and expertise of Professor Q, that a more holistic environment might provide J with a better environment within which to express himself and his true emotions, whilst at the same time providing to the Court information which would assist the Court in arriving at orders after July that might be in his best interests. 

12. I consider that environment, to the best that any Court process or orders can facilitate it, is best met by the continuation of the section 65L order, contemplated by the orders made by me on 19 January.  Given that those orders were designed to be final orders, that order does not contemplate within its terms a report being prepared by Ms B (who is the family consultant who had earlier seen J). 

13. I propose to request a report from Ms B, relating to her observations of J including, if at all possible, interactions between J and each of his parents in the time between now and when this matter returns on 4 July. 

14. I would also respectfully request that Ms B be available to give oral evidence, and if necessary, answer questions from the Court and be cross-examined, if necessary, by the parties or their legal representatives on that date.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 6 April 2011.

Associate: 

Date:  14 April 2011