Donaghey & Donaghey (No. 3)

[2011] FamCA 885

FAMILY COURT OF AUSTRALIA

DONAGHEY & DONAGHEY (NO. 3) [2011] FamCA 885

FAMILY LAW – CHILDREN – Supervised time with the child

APPLICANT: Mr Donaghey

RESPONDENT: Ms Donaghey

INDEPENDENT CHILDREN’S LAWYER: Mr Selfridge

FILE NUMBER: LEC 85 of 2007

DATE DELIVERED: 10 November 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 10 November 2011

REPRESENTATION

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

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Legal Aid Qld at Southport

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The orders made on 6 April 2011 be varied by discharging paragraph 6 thereof and in lieu providing that the child J Donaghey born … August 2004 (“[J]”) spend time with the mother at all such times as may be agreed in writing by the mother, the father and the Independent Children's Lawyer and failing such agreement at Contact Centre 1, as and from Saturday 19 November 2011 and each alternate Saturday thereafter for such period of time as Contact Centre 1 can accommodate but not less than 2 hours.

   AND IT IS RESPECTFULLY REQUESTED THAT the Director of Contact Centre 1 give consideration to this matter being regarded as having “special circumstances” so as to avail J of the opportunity to spend the maximum amount of time with his mother afforded by the Contact Centre, and in that respect given the lengthy and difficult history of this mater, it is respectfully requested that the said Director have regard to:

   (a)The respectful request by this Court to consider whether special circumstances exist so as to extend the available supervised time.

   (b)The opinion of the Family Consultant Ms B that any such extension of time would be in J’s best interests.

IT IS ORDERED THAT

Parenting

1. The father file and serve any Application setting out such final and interim parenting orders as he might seek with respect to J, by 4.00pm on 17 February 2012.

2. The mother file and serve any Response setting out such final and interim parenting orders as she might seek with respect to J, by 4.00pm on 2 March 2012.

3. Any such Application by the father for parenting orders, and any such Response by the mother, be listed for the making of directions at 2.15pm on 12 March 2012 in the Brisbane Registry of the Family Court of Australia.

4. To the extent that the exception provided for in Section 121(9)(g) of the Family Law Act 1975 or the other provisions of that subsection do not otherwise authorise same, the Independent Children's Lawyer shall have leave to publish an account of these proceedings, namely the orders and reasons for judgment of today to the Director Contact Centre 1.

Costs

1. The father’s Application for costs, filed 6 February 2011, be adjourned to 2.15pm on 12 March 2012.

2. Any material relating to the Application for costs, including any written submissions, be filed and served by the father by 4.00pm on 17 February 2012.

3. Any material relating to the father’s Application for costs, including any written submissions, be filed by the mother by 4.00pm on 2 March 2012.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Donaghey & Donaghey (No. 3) 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. I do not propose to deliver lengthy reasons in this matter.  To the extent that reasons are required in order to support the orders for time just made, I repeat each and all of the matters and findings made in the lengthy trial judgment given by me in this matter. I particularly refer to paragraphs 254 and following of those Reasons and the extempore reasons provided in respect of orders made on 6 April 2011. 

2. The mother contends that the (unchallenged) good and beneficial relationship that she has with the child needs to flourish within an environment where they can maximise and enjoy their time together. So much as it seems to me is indisputable. 

3. However, the matters referred to in my trial Reasons now need to be seen in the light of the extraordinary, not to mention contemptuous, behaviour of the mother in secreting the child’s whereabouts following the making of, and in the face of those orders, and the significant likely detrimental affect on the child resulting there from. To that needs to be added what the mother herself deposes about her remaining attitudes towards the child insofar as she says that there might be risk occasioned to him by the father, and what she expressed to similar effect to the family consultant, Ms B, when being interviewed for the purposes of a 65L report by Ms B.

4. In crude terms, nothing has changed. 

5. As an example, at paragraph 41 of the family consultant’s report, she says:

   [The mother] indicated that she still feels that [the child] needs protecting and stated, “I’d be a slack mother if I suddenly changed my mind.”  She again reflected that [the child’s] demeanour has changed and that he is more aloof and distant with her.  She further reflected that, “If anything untoward is going on, he has accepted it as normal and puts up with it because he wouldn’t want all of this again.  He’ll put up and shut up.  That’s my honest assessment because I know what [the child’s] like.  He’s a brave little boy.”

6. Disturbingly, the mother said to the family consultant, as reported by her at paragraph 39 of the report, that there were conversations between the mother and the child during the time that they were “doing a bolt” (to use the mother’s expression).  The mother told the family consultant that she had told the child that: “Dad said he didn’t do anything wrong and judge believed him, and he didn’t believe what you or me said.”

7. Ultimately, the family consultant concluded that, at paragraph 57 of her report:

   There is no doubt that [the child] wishes to see his mother and his desire is to spend more time with his mother in the future.  My concern is that while [the mother] continues to perceive [the father] as a danger to [the child], this perception of hers will inevitably (consciously or subconsciously) come through in what she says and does with [the child], and confuse and/or influence his perception and relationship he has with his father.  This could potentially jeopardise and weaken [the child’s] relationship with both his parents.  Hence, it is my opinion that [the child’s] time with his mother must continue to be supervised.

8. I could not agree more with the sentiments there expressed. 

9. In saying that, I should make it plain in the short reasons, as I made it plain to the mother, that family consultants do not decide cases; judges do.  The opinions and recommendations offered by family consultants are, frequently, of great assistance to a court, but they provide no more than expert opinions, which assist and guide the decision to be made ultimately by the person in whom responsibility for that ghastly task resides.

10. As I said to the mother (who represents herself today), during the course of discussions, Ms B and, indeed, every other family consultant attached to this Court, would be able to give plenty of examples where I and, indeed, other judges, have reached conclusions contrary to recommendations made by family consultants.  So much comes with the job. 

11. Lest it be thought that the matters to which I have just referred might be seen as all “negative” in terms of perceptions about concerns that I continue to have with respect to what the child may be exposed to if time between he and the mother was not supervised, I should also add, pleasingly, that the family consultant reports at para 53, for example, that:

    It appears from the school reports, from comments by [the father], observations I have made of the interactions between [the child] and [the mother], and the notes from the Contact Centre …, that [the child] has fared remarkably well since he was placed into his father’s full-time care.  It has taken some time to adjust in regard to interacting socially with his peers at school, and also relating to a father (gender specific) as opposed to his mother, but overall, [the child] appears presents as a happy and resilient little boy.

12. I have no hesitation in coming to the conclusion that time between the child and his mother should continue to be supervised.

13. The mother informs me, from the bar table, that her enquiries with Contact Centre 1 reveal that that centre offers supervised time only in blocks of two hours, unless they can be convinced that “special circumstances” exist. 

14. The mother is right in identifying my desire, at the time that I delivered orders consequent upon the trial, that, provided time between the mother and the child could be supervised, that time should be maximised in his best interests.  The information provided by the mother comes, if I may say so, as no surprise.  I can, I think, take judicial notice of the fact that the demands upon the Contact Centre resources are very much greater than the time that those contact centres can provide. 

15. It is unsurprising that the Contact Centre would give the mother the information which they did.  Such information is entirely consistent with what I now gather to be the vast majority, if not all, contact centres offering time, certainly in southeast Queensland and northern New South Wales.

16. With that in mind I suspect, the mother suggests that the father should supervise time between she and the child.  She says that this is what occurred immediately post-separation, and that the child appeared to adjust to and enjoy that time. 

17. It might, of course, be observed that the child is now a very different boy to the boy he was at the age and stage of development when separation occurred.  Many of the matters relevant to the child’s current age and, particularly, state of development, are referred to in the family consultant’s report. 

18. On any view of it, the mother continues to hold perceptions that the father has, in the past, perpetrated evil sexual deeds upon the child, and continues to hold the belief that the child is at risk of those sorts of behaviours from the father now and into the future.  It seems to me inconceivable, notwithstanding the fact that, overtly, they behave cordially towards each other, that the parties could behave in a manner toward each other that would give the child the impression that they were conducting a “normal” parental relationship as he, and virtually every other child in a post-separation situation, so fervently wants.

19. Indeed, as the family consultant said in the witness box and, again, I respectfully agree, the attempt to have what the child so plainly desires, namely a “normal” or “being friends” relationship between he and his parents, might, in the reality, not meet his (understandable) fantasy and, as a result, be significantly counter-productive. 

20. I’m not persuaded, but I should contemplate the father being a supervisor of time as is suggested.

21. Taking account of those matters, it seems to me that, unfortunately, it continues to be in the child’s best interest that time between he and his mother be supervised. 

22. I would, if I could, further maximise the time during which that supervised relationship between the two could be enjoyed. 

23. The best that can be done, in the current circumstances, is to respectfully request the Contact Centre to give careful consideration to whether the time between the child and his mother, afforded by that centre, could be increased to three hours as a result of a determination by them that “special circumstances” exist.

24. I emphasise to the self-represented mother that I cannot, in any way, shape or form, bind the Contact Centre to any such regime, nor can I order them to do anything.  The best that can be done is to forward to them a respectful request that they give careful consideration to any such application by the mother to extend time to three hours, and to indicate that, in these reasons if they were able to do so, that that should be the amount of time between the child and the mother.

25. So as to facilitate a consideration of that issue, I will make an order pursuant to section 121(9)(g) of the Act that the independent children’s lawyer be at liberty to publish an account of these proceedings, namely the orders made by me today and these short Reasons for Judgment, to the director of Contact Centre 1.

26. I otherwise order in accordance with the orders earlier referred to.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 10 November 2011.

Associate: 

Date:  22 November 2011