Eddings and Eddings

FAMILY COURT OF AUSTRALIA

EDDINGS & EDDINGS

[2009] FamCA 71

FAMILY LAW – CHILDREN – with whom the child spends time

Family Law Act 1975 (Cth)

APPLICANT:

Mr Eddings

RESPONDENT:

Ms Eddings

INDEPENDENT CHILDREN’S LAWYER:

Ms O’Neill

FILE NUMBER:

BRC 5878

2008

DATE DELIVERED:

3 February 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

3 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Johnson

Johnsons Solicitors and Attorneys

RESPONDENT:

Appeared on her own behalf

SOLICITOR FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Ms O’Neill

Legal Aid Queensland

Orders

IT IS ORDERED THAT

The matter be set down for final hearing before Justice Murphy for two (2) days commencing at 10.00am on 15 June 2009 in the Brisbane Registry of the Family Court of Australia.
SUBPOENAE
The Independent Children's Lawyer is granted leave to issue subpoena to give evidence to Ms E, an Officer of the Department of Communities, with respect to her involvement in the events of May 2008 and in particular, any views expressed by the child … born … October 1993 at that time.
Leave is granted to all parties to inspect all documents produced pursuant to all subpoenae, save where objection is taken by the recipient of any subpoenae to either the production or inspection of documents, and the Independent Children's Lawyer ONLY is granted leave to copy any such documents as considered reasonable and necessary, no other parties shall copy any documents without further order of Justice Murphy.

IT IS NOTED THAT all documents produced pursuant to subpoena should forthwith be held by the subpoena section of the Family Court of Australia, Brisbane.

DISTRIBUTION OF FAMILY REPORTS

The Independent Children's Lawyer is to provide the Reports of Family Consultant Ms D dated 1 August 2008 and 2 January 2009 to Dr. B, Ms. Q and Mr. H on condition that:
a) If required, such persons attend at the final hearing of the matter to give evidence; and
b) The Independent Children's Lawyer indicate in summary terms the concerns expressed by Justice Murphy with respect to the privacy of the child … born … October 1993, and at the same time indicate to such persons the provision of s 121 of the Family Law Act.
AFFIDAVITS
Leave is granted to:
a.the mother to file and serve affidavits from Mr. T, Ms. S, Mr. P, Mr. DJ;
b.the mother to file and serve (subsequent to each receiving the reports of Ms. D) affidavits in response from Mr H and Ms Q;
c.the father to file and serve an affidavit by Dr A;
d.the Independent Children's Lawyer to file and serve a bundle of documents (and list of documents) for trial, collated and indexed.

PROVIDED THAT ANY AND ALL SUCH AFFIDAVITS SHALL BE FILED AND SERVED WITHIN 21 DAYS OF THE DATE OF THIS ORDER, IT IS DIRECTED THAT:

MOTHER’S EVIDENCE

The mother shall rely only upon the following as evidence in her case at the final hearing of this matter:
a.Her affidavit filed on 14 July 2008.
b.The following documents annexed to her affidavit filed on 14 July 2008, only on the condition that those persons are available for cross-examination at the final hearing of this matter if required by either the father or the Independent Children's Lawyer:
·Statutory Declaration of Mr. H declared on 12 July 2008
·Letter from Ms. Q dated 10 July 2008
·Attached affidavit of Ms. Z
·Attached affidavit of Ms. K
·Attached affidavit of Ms. JJ.
c.On condition that they are filed and served within 21 days of the date of this Order, the affidavits of the following people in respect of whom permission has been granted today to receive a copy of the reports prepared by the Family Consultant Ms D:
·Mr. H
·Ms. Q.
·Dr. B
d.The joint affidavit of Mr and Ms G filed by leave today;
e.On the condition that they have been filed and served within 21 days of the date of this order, and are available for cross-examination as required, the affidavits of:
·   Mr T
·   Ms S
·   Mr P
·   Mr DJ.
FATHER’S EVIDENCE
The father shall rely only on the following as evidence in his case at the final hearing of this matter:
a.       The affidavit of the father filed on 27 June 2008;
b.      The affidavit of Ms R filed on 27 June 2008;
c.      The affidavit of the father filed on 14 July 2008;
d.      The affidavit of Mr MS filed on 18 August 2008;
e.      The affidavit of the father filed on 8 September 2008;
f.The affidavit of Dr A on condition that it be filed and served within 21 days of the date of this Order and is available for cross-examination if required.
INDEPENDENT CHILDREN'S LAWYER’S EVIDENCE
The Independent Children's Lawyer shall rely only on the following as evidence in her case at the final hearing of this matter:
a.The Reports of Ms D of 1 August 2008, 2 January 2009 and any report emanating from Order 10 hereof;
b. The affidavit of Dr B filed on 19 January 2009;
c.The evidence of Ms E from the Department of Communities;
d.The bundle of documents to be prepared by the Independent Children's Lawyer on condition that same is filed and served within 21 days of today.

IT IS ORDERED UNTIL FURTHER ORDER THAT

TIME WITH THE CHILD

Pending the final hearing of this matter, the orders made by Justice Murphy at paragraphs 3 and 4 of the orders made on 25 August 2008 and paragraph 1 of the orders made on 17 September are discharged, and in lieu, it is ordered as follows.
In further compliance with the order made previously at paragraph 11 of the orders made on 25 August 2008, pursuant to s 65L of the Family Law Act 1975, Ms D be requested to meet with the parties and the child … born … October 1993 and the parties do all such things as might be required so as to facilitate them and the child seeing Ms D on the following occasions:
·2.00pm on 5 March 2009
·2.00pm on 3 April 2009
·2.00pm on 1 May 2009
·2.00 pm on 29 May 2009
and for any issues thought by Ms D to be relevant to the child’s best interests arising therefrom to form the subject of a further report which such report shall be available to the parties and the Court by not later than Friday 5 June 2009;
The child spend time with his mother at all such times as the child and the mother might agree including:
a) weekend time which such time shall accommodate the child’s cricketing and other sporting commitments and
b)
time as might be agreed during the Easter school holiday period in April 2009.

IT IS NOTED THAT the Order does not require the child to make any decision about time or more generally about his best interests in circumstances where he expresses a firm desire not to do so.

IT IS FURTHER ORDERED THAT

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 DIRECTED THAT

A copy of the Court’s reasons be prepared and forwarded to each of the parties in light of the fact that the mother represents herself and will be representing herself at the final hearing and it is requested that the issue of these orders be expedited.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5878 of 2008

MR EDDINGS

Applicant

And

MS EDDINGS

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

I will order in accordance with the orders indicated earlier. My brief reasons are these:
I have given two earlier decisions in this matter. The child is born in October 1993 and is currently aged approximately 15.4 years. Proceedings between these parties have occurred for almost the whole of the child’s life. That is a disgrace.
Both parties should be utterly ashamed that they continue to fight about parenting orders at a time when the child has barely more than two years to go until he is an adult.
Notwithstanding those comments and what seems to me to be patently obvious matters directly relevant to the child’s best interests, it seems that the mother suggests that there should be a trial.
At that trial, by reference to the material indicated by the mother as being relied upon there, she has made it clear that she considers it in the child’s best interests that a number of issues, some dating back to 2000 and 2001, when the child had not started high school, are directly relevant to the determination I need to make now, 8 or 9 years later.
Two reports, but more recently a report pursuant to s 65L of the Act, have been prepared by Ms D. It is not appropriate in the context of these short interim proceedings which occur in the context of a continuation hearing of a trial where detailed directions have been made so that the final hearing will take placed on 15 and 16 June 2009, to canvass the long and sorry history of the dispute and litigation between these parents.
Whatever might occur at the trial, it seems to me abundantly clear that what is in the child’s best interests is that his adulthood comes as soon as it can possibly come to save him from further proceedings and being involved in what, according to the mother, has been "11 years of virtually perennial conflict".
Just reciting the fact that these two parents have been involved in disputes about the child for 11 of his 15 and a half years, is sufficient to indicate the depth, breadth and alleged complexity of the factual issues and psychological issues at large in these proceedings.
An attempt was made in earlier orders made by me to bring some rationality to the child’s life by attempting to invoke the expertise of the family consultants attached to this Court within the process envisaged by s 65L of the Act. Meetings were arranged within that process and a report prepared which is before the Court, dated 2 January 2009.
I record for the purposes of completeness as I recorded on earlier occasions, that in the context earlier described I am conscious of what the Full Court had to say in Goode & Goode, the provisions of the Act, including its objects, principles and considerations and I am cognisant of the fact that, even in this very limited context, decisions have to be made about those matters.
Stark though, is the fact that the child is approximately 15 years and 4 months old. Ms D, the family consultant, has spoken to him at some length. She says this of him:
“[The child] (aged 15 years) presented as an articulate, friendly and nonchalant young man. [The child’s] laid-back presentation appears to be a reflection of his attitude towards these proceedings and is the result of his ongoing participation in such Court processes. He speaks matter‑of‑factly about his views and wishes although will become quite expressive when frustrated by his mother’s beliefs and actions.”
In other parts of the report Ms D expands upon those observations. At par 19 of her report she says this:
“Throughout my involvement with this family each of the parties including [the child] have been consistent with their views and wishes. [The child] has consistently stated that he wants to live with his father and spend time with his mother on alternative weekends. He describes two very different relationships with his parents; one with his father which is calm, supportive and conflict-free and the other with his mother which is highly emotive, unstable and characterised by accusations.”
Whatever might be the accuracy or otherwise of those observations insofar as they apply to each of the parties, I observe that it is profoundly tragic that the child should express such differing views about his parents who have been at war about him for such a long time.
At par 20 of the report Ms D says this:
“On 12 September 2008 [the child] described his mother as having “multiple personalities” and that his mother “is never happy with me ... she is always at me”. [The child] consistently reported that there was a side to his mother which he loved “hanging out" with and the other personality that constantly accuses him of stealing and wants to discuss Court matters. This was reiterated on 17 October 2008 when [the child] stated “half the time she is my mum and half the time she is out to get me”, and again on 25 November 2008 “every time I see her, it is just more crap ... we are going to gaol ... your father [for] perjury:”.”
In earlier orders I made on 25 August 2008, I ordered on an interim basis that the child continue to reside with his father and that he spend time with his mother each alternate weekend and for half of the school holidays falling between the date of that order and the next return date before the Court which is today. Subsequently I made an order in Chambers in respect of changeover to give effect to those time arrangements.
The discussions between Ms D and the child, then, had as their context those orders for time made by me. Ms D says in the report:
“22. On 17 October 2008 [the child] described his time with his mother over the school holiday period as being “up and down ... couple of days she was bombed out in bed as a result of drinking ... could smell it ... glass next to her bed”. He further reported that his mother continued to accuse him of stealing and of her need to impose her version of events upon him. [The child] stated that his mother said “lies are going to come out in Court” and told him that he would go to Juvenile Court with respect to his stealing.
...
26. On 17 October 2008 [the child] reported his feelings about the upcoming school holidays and spending time with his mother. He indicated that he was not looking forward to the Christmas school holidays as it was hard dealing with one week of school holiday time, let alone more weeks. He reiterated his desire for the status quo to remain. As it turned out [the child] and his mother arranged on 25 November 2008 for him to spend only one week with her during school holidays and to cease weekend time until further notice.”
The last part of the paragraph just quoted is important. First, it is an indication that whatever might be the merits and accuracy of the allegations and counter‑allegations in respect of who did what and when, all of which it seems, the mother wishes to pursue at a final hearing, she has, thank goodness, been able to speak to her almost 15 and a half year old child and listened to him, with a view to making arrangements that suited him and her with respect to time.
Secondly, it is significant, as it seems to me, that during those discussions, whatever else may have occurred and whatever other undercurrents may have been present during them, the child and his mother were able to agree on an arrangement alternative to those which were ordered by me on a previous occasion. Again, the mother, and indeed the child, each deserve commendation for being able to make that agreement between themselves.
At par 27 of the report Ms D records:
“On 25 November 2008 [the child] advised that he would “probably ditch ... probably run off” if made to live with his mother. He indicated that it would be the “worst thing that could happen ... rather live in foster home”. This is consistent with [the child’s] response during the child and family meeting on 25 July 2008 when I first met the family.”
Ultimately Ms D recommends, and the independent children's lawyer, supports an arrangement whereby time that the child spends with his mother should be such as he and the mother can agree.
I should say that Ms D recognises implicitly the importance of what she refers to as his soccer, that being the sport being played by him at the time that the report was prepared.
Each of the parents indicate strongly that they recognise the extreme importance for the child of sport in his life. The mother tells me that it is an extremely important part of the child’s life and that he is very good at it.
I record in these reasons that the mother has indicated to me that for her part (leaving aside anything that the child might have to say about the matter) she would always ensure that any arrangements for time with the child were such as to permit the child to participate in his sport and, she says, during her time with him she would seek to be present so that she could watch the child participate.
As I indicated strongly to each of the parties and the independent children's lawyer during the course of submissions, I was profoundly concerned that were the arrangement that Ms D recommends be enshrined in Court orders, it may carry an implicit suggestion that the child had some form of obligation to make a decision about his time, or that the responsibility for a decision about time should be his.
I was at pains during the course of argument and I am at pains in these reasons, to make clear that the child has no such obligation.
It is plainly not either his responsibility or obligation to become involved in his parents’ dispute about him if he chooses not to.
It is plainly not his responsibility to make decisions which responsible parents should make by joint agreed decision, or in circumstances where they are unable or unwilling to do so, by somebody charged with the responsibility to do so pursuant to the Family Law Act.
I expressed those concerns during the course of argument. I suggested that a possible means of dealing with those concerns, but at the same time leaving appropriate time arrangements for agreement between the child and his mother might be for short reasons for judgement to be provided to the child.
The independent children's lawyer supported such a course provided they were, as it were, very restricted in terms of what they said.
The sole intention behind my suggestion was to give the child the message from the Court to which I have just referred and that he should feel perfectly free to choose not to choose if that is what he truly wanted to do.
On balance however, it seems to me that exposing the child to the proceedings in that way, albeit for the very limited purpose to which I have referred, is not in his best interests.
I am satisfied that, if the s 65L process previously ordered by me can continue, and if common sense, intelligence and respect for each other can attend discussions between the child and his mother, that those discussions and agreement resulting from those discussions, is in fact the best way for time arrangements between the child and his mother to be sorted out.
I understand, with respect, the recommendation by Ms D to have that context and, with that context, I agree with it.
It seems to me that I can meet my concerns earlier expressed by recording them in these reasons and making those concerns abundantly plain to each of the parties and indeed to Ms D should she choose to read these reasons, and by continuing the s 65L process which has already taken place.
In that respect the final hearing of this matter is due to take place in about 16 weeks or so. I have been able to ascertain that Ms D is available to meet with the parties and the child on four specified occasions during that time. Those four specified occasions include two occasions prior to the April school holidays, including one occasion on 3 April 2009 which is the Friday immediately before those holidays.
Plainly, the issue of discussions between the child and his mother with respect to what time, if any, he should spend with her during that school holiday period, is likely to be a live matter for discussion during the interviews on that day and on the previous meeting date on 5 March 2009.
Those meeting dates have also been structured so as to provide meetings on two occasions after those school holidays and well prior to the final hearing of the matter.

It seems to me that those meetings, together with the clear enunciation of my concerns both during argument and during these reasons provide a sufficient basis for alleviating the concerns which I earlier expressed.
I should add that the mother, who again appears for herself, told me that, whatever might have been the difficulties with respect to time arising from the orders made by me, she and the child have been able to reach an agreement about this coming weekend. She also told me in effect that she agrees wholeheartedly that an agreed arrangement between she and the child occurring after discussion between the two of them, is the best way in which time arrangements can be worked out.
For those reasons and bearing in mind all of those considerations, I make the orders earlier indicated with respect to time.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 10 February 2009

[2009] FamCA 71

3 February 2009

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