Eddings and Eddings

[2008] FamCA 552

FAMILY COURT OF AUSTRALIA

EDDINGS & EDDINGS [2008] FamCA 552

FAMILY LAW – CHILDREN – Best Interests

Family Law Act 1975 (Cth)

APPLICANT: MR EDDINGS

RESPONDENT: MS EDDINGS

FILE NUMBER: BRC 5878 of 2008

DATE DELIVERED: 14 July 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 14 July 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Johnson

Johnsons Solicitors and Attorneys

COUNSEL FOR THE RESPONDENT: Respondent appeared on her own behalf

Orders

IT IS ORDERED BY CONSENT THAT

1.The order in paragraph 7 of annexure B of the Initiating Application filed by the father on 27 June 2008 be deleted.

IT IS ORDERED THAT

2.The interests, in these proceedings, of the child, M, born … October 1993, be independently represented by a lawyer and it is requested that Legal Aid Queensland arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Brisbane.

3.Pursuant to s 62G Family Law Act 1975 the parties attend upon a Family Consultant nominated by the Director, Child Dispute Services, Brisbane Registry on a date to be advised for the purposes of an intake and assessment interviews and thereafter attend upon the Family Consultant as requested by the Family Consultant.

4.The Family Consultant provide an intake and assessment  report on the first day of trial on the following matters relating to the care, welfare and development of the child, M born … October 1993.

a.In preparing the report the Family Consultant is directed to consider:

i.The relevant issues in dispute;

ii.The views, feelings and experiences of the children;

iii.The social science research and knowledge relevant to the children and the issues in dispute;

iv.The parents/parties understanding of and capacity to respond to feedback from the Family Consultant in relation to the children's views, feelings and experiences;

v.The options proposed  for the children's arrangements;

vi.Recommendations for any programs, groups or counselling that may assist the parties and/or the children;

vii.Recommendations for any further assessments, including a full family report;

viii.Any other matters the Family Consultant considers relate to the care welfare and development of the children.

b.The nominated Family Consultant is to provide the following services in relation to the proceedings:

i.Interview the parties, the children the subject of the proceedings and any other person which the Family Consultant in his or her opinion, is important to interview for the purposes of assisting the Court make a determination in the proceedings;

ii.Advise the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to in the proceedings;

iii.Assist and advise the Court, and give evidence in relation to the proceedings including providing any oral or written reports requested.

5.The matter be adjourned for a 1^st day of trial before Justice Murphy at 2.15pm on 25 August 2008 in the Brisbane Registry of the Family Court of Australia.

6.Leave be granted to either party and/or the Independent Children's Lawyer to issue subpoena to the Nambour General Hospital, and in particular to the psychiatric unit of the Nambour General Hospital in respect of all treatment administered by the unit to the mother …, and the Queensland Police Service in respect of any investigations relating to the father …, the mother …, or the child M born … October 1993, and/or any contact had by the Queensland Police Service with Mr R and/or Mrs R and/or the mother, returnable on a date to be advised.

7.The directions hearing listed for 17 July 2008 be vacated.

IT IS ORDERED UNTIL 4.00PM ON 25 AUGUST 2008 OR EARLIER ORDER THAT

8.M born … October 1993 live with the father.

9.The said child spend face to face time with the mother, with such frequency and for such periods as can be accommodated by the … Contact Centre, and the father shall do all such things such as to facilitiate the child being available for such time at such contact centre.

10.The said child shall be at liberty to contact the mother by telephone, and the father shall do all such things as might be necessary so as to encourage the child’s contact with the mother by telephone.

IT IS FURTHER ORDERED THAT

11.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

(a)Ms Huth, Solicitor, Legal Aid Queensland, has apparently previously been involved with this child and his family and it is respectfully requested that the Director of Legal Aid Queensland give consideration to Ms Huth being appointed as the Independent Children's Lawyer pursuant to order one (1) above.

IT IS NOTED that publication of this judgment under the pseudonym Eddings & 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

1.This matter comes before me pursuant to an Application in a Case filed by the father in respect of which he seeks parenting orders on an interim basis and, in particular, that orders made on 7 April 2005 by consent be discharged. 

2.The current parenting orders relate to the parties' one child, M, born in October 1993. 

3.I observe that M is now aged some 14 years and 10 months and, by the time this matter is heard again by the Court, will be just short of his 15^th birthday.

4.During the course of argument, each of the parties sought that I appoint an Independent Children's Lawyer.  It seems to me that, in terms of the relevant criteria, this is a case that involves long-standing conflict between the parties, a child of mature years whose views will be important in the proceedings and, allegations of either mental illness and/or alcoholism suffered by the mother.

5.There are also factual issues of some complexity, including allegations by the mother that the father, and at least one of the witnesses in the case, are involved in some form of "set up" or conspiracy to tell lies and to use a series of factual circumstances to the best advantage of the father’s parenting case.

6.I am also told by the mother that Ms Huth, a solicitor in the employ of the Legal Aid Office Queensland and an Independent Children's Lawyer well known to this Court, has had prior involvement with this family. 

7.In those circumstances, I am satisfied that it is appropriate for me to appoint an independent children's lawyer for M and I shall include in my orders a notation to the effect that Ms Huth has been previously involved in the matter and a request that, if it is at all possible, the Legal Aid Office use best endeavours to see that Ms Huth is, again, the Independent Children's Lawyer in respect of the matter.

8.In making that request, I consider it important in the context of the issues raised in this case, that the mother, during the course of her argument before me today, indicated that her previous contact with Ms Huth had been, in broad terms, very positive and that she was desirous of Ms Huth being again involved with M.

9.It is also apparent from what has fallen during the course of argument that it will be important for the Court to have before it, information from the … General Hospital’s psychiatric unit in relation to any contact that hospital has had with the mother and, in particular, with respect to the apparent Involuntary Treatment Order made in respect of the mother on or about 26 May 2008. That Order was terminated by Dr B, Psychiatrist, on 6 June 2008.

10.For that reason, I propose to grant leave to either party to issue a subpoena addressed to that hospital.

11.Orders were made by consent on 7 April 2005 in respect of M.  At that time, he was some 11 years of age.  In very broad terms, those orders provided that M live with the mother and spend alternate weekends and half of the school holidays with his father.

12.In what the father asserts is a significant change of circumstances in the relevant legal sense, events towards the end of May caused the father, he says, significant concern with respect to M's welfare in the care of the mother.

13.In particular, he relies on an affidavit by Mrs R.  Mrs R and her husband were staying in the home of the mother and M for a short period of time prior to the events about to be discussed. 

14.How they commenced to do so is the subject of considerable confusion on my part.  The mother says that a person by the name of C indicated to her that a married couple had been evicted from one of their mother's homes and was in need of a place to stay. The mother says that she met Mrs R and there was a conversation between the two of them under a tree at the local markets.  Shortly thereafter, the mother says that Mr and Mrs R arrived at her home unannounced (on or about 9 May) at about 8.30 at night.  The mother says that she had no prior knowledge of Mr and Mrs R turning up at that time and that she was surprised by them doing so.

15.The mother also says that that occasion was the first occasion that she had met Mr R.  She says that she was unimpressed by him and came to the conclusion that she did not want him to share her home.  Nevertheless, Mr and Mrs R moved in a short time later. 

16.The mother says that she said to Mr and Mrs R that they could move in for a couple of days until such time as they found alternative accommodation.

17.The mother alleges that Mrs R, her husband and the father in these proceedings have colluded to "set up" the mother and to, in effect, create circumstances that would provide a basis for an application such as that which has now been made by the father. 

18.It goes without saying that inherent in that allegation is an allegation that Mrs R and the father have each perjured themselves with all of the ramifications that implies.

19.The father submits that he did not at all know Mr and Mrs R prior to the events of approximately 26 May 2008. On that date that he was in Western Australia working and he says the first he knew of the predicament in which M found himself was when M contacted him by telephone. 

20.Mrs R has sworn an affidavit filed in the father's case in which she deposes to the observations, indicative, she says, of the mother "suffering from alcohol abuse” and deposing to the mother “needing a minimum of two bottles of wine per day”.

21.She says that she has also "witnessed the mother physically abusing the child", including, on about 20 May 2008, witnessing the mother: "beating the child with a wooden spoon.  I witnessed the child cry for hours after this abuse.  The mother advised me to ignore the child". 

22.Mrs R also alleges "constant neglect" of the child (whatever that general expression might mean) and that the mother would "dismiss him and ignore the child's request". 

23.The mother says that there were issues between she and Mrs R primarily relating, I gather, to their respective dogs, and she says, in denying each and all of the allegations made by Mrs R in that affidavit, that Mrs R is motivated by ill will towards her as a result of those disagreements.

24.As I have said, she alleges that Mrs R is in some sort of compact with the husband in order to set her up such that M would be removed from her care.

25.As I explained to the mother (who appears for herself) consistent with the principles enunciated by the Full Court in decisions such as C & C, Cowling and, more recently, post-Reform Act, in Goode & Goode interim proceedings bring with them significant curtailments in process with a consequent limit of what might be achieved. 

26.Most frustratingly of all, both for parties and the Court, the Court is unable to make factual findings about matters of dispute unless the evidence compels those findings or unless those factual matters are, in fact, not significantly in dispute. 

27.As will be clear from what I have said, the factual allegations and counter allegations are here complex and serious and I could not even begin to enter upon findings in respect of those matters on a curtailed interim hearing in what has, today, been a busy duty list.

28.What I do know as a fact is that, until recent times, even on the evidence of the mother, the orders made now some three years ago have, in broad terms, been complied with. 

29.I am not told by the mother of any major difficulties in respect of those orders save for one very recent incident which she mentioned and that is when an arrangement that involved a dog being present did not occur as it had occurred in the past.  Those arrangements have been in place for some three years. 

30.This Court is confronted with prima facie evidence from the father, and the evidence of Mrs R.  The evidence of Mrs R if taken at face value, is of significant concern. 

31.That evidence includes allegations of neglect.  It includes allegations of physical abuse with an implement and it includes allegations of the mother suffering from, describing it as neutrally as I can, the abuse of alcohol or drinking alcohol to excess that has impacted upon her parenting.

32.Combined with that evidence, I know as a fact (whatever be the correct version of events) that as a result of an incident that occurred on or about 26 May 2008, police involvement consequent upon an incident involving Mr and Mrs R and the mother, resulted in removal of the mother from the premises to the General Hospital where she was admitted to the psychiatric unit pursuant to an Involuntary Treatment Order. 

33.It is uncontentious that that Involuntary Treatment Order stayed in place until 6 June 2008 when a psychiatrist, Dr B, terminated it.

34.The mother relies upon, as an annexure to her affidavit, the terms of the Revocation of Involuntary Treatment Order.  That document requires reasons to be given by the psychiatrist and the mother places particular reliance on the fact that Dr B says in that document:

I am not convinced this lady has a mental illness.  I have interviewed two friends who know her well and a pastoral care worker […] I have read reports from two treating psychologists or counsellors supporting this patient's normality, given her life's circumstances as well as other collateral information in the file suggesting each of her mental state examinations et cetera which are commensurate with a psychiatric diagnosis, can also be seen from a different perspective as understandable and non pathological.  I have also interviewed the patient on two occasions separated by a successful period of leave and have negotiated agreement for follow up after this admission.

35.The mother places reliance upon that document to support her assertion that, in effect, there was no need for her to be made the subject of an Involuntary Treatment Order in the first place.

36.That may be so or it may not.  The evidence is as yet significantly short of that which the Court would need in order to make that determination. 

37.Mr Johnson, who appears for the father, points to the last part of the document just quoted and submits that Dr B says that she has seen the patient on two occasions separated by a "successful period of leave".

38.He also relies upon the fact that Dr B, at least implicitly suggests that there should be follow up treatment and this is indicative of the doctor assessing some problem in the past.

39.The Court would be assisted by a full report from Dr B and I have little doubt that the Independent Children's Lawyer will communicate with Dr B sooner rather than later. 

40.However, for present purposes, it seems undisputed that, for two weeks, the mother’s Involuntary Treatment Order stayed in place and during that time she was seen by a number of psychiatrist registrars (although she describes all of them, I gather, as incompetent). 

41.I should record the obvious fact that I am cognisant of the principles necessary to be applied in the determination of any parenting case, including an interim parenting case, that are set out, for example, in s 60CC, and s 60B of the Act.

42.I am also cognisant of the Full Court decision of Goode & Goode. 

43.On the evidence before me, uppermost in my mind in determining these interim proceedings is the primary consideration of the need to protect M from harm and the important additional consideration of the alleged views expressed by him, a child who is approaching his 15^th birthday. 

44.I note, in that respect, that the mother told me during the course of argument that she had previously said to M, in effect in recognition of his age and maturity, that at the end of this year, if he chose to live with his father, then she would facilitate that occurring.

45.The mother argues that I should be circumspect about taking on board what M has to say.  She suggests, at least implicitly, that the father has been instrumental in shaping M's views. 

46.She cites, specifically, the example of telephone contact.  The father says that he is ready, willing and able to assist M in facilitating telephone contact with his mother but so far M has refused to do so.  The mother says that M has a mobile phone and if he is not contacting her then it is because his father has, in effect, influenced him to that view or to that behaviour.

47.Clearly, M's views are a significant issue in these interim proceedings and, in that respect, again on a prima facie basis without making any concluded decision of fact in respect of them, I note that the father swears to information from M about a number of things that occurred on or about 26 May 2008 including witnessing an altercation between the mother and Mrs R during which he heard a mug smash and witnessed his mother attempting to attack Mrs R by throwing it in Mrs R's direction. 

48.The father also deposes to M informing him that the mother verbally abused him and, in a fit of rage, attempted to push M down a set of stairs. The mother denies those allegations. 

49.The father also deposes, in that affidavit, that:

The child has informed me that he does not want to return to residing with his mother and I verily believe that the child has been traumatised by the events [earlier described in the affidavit].

50.The father goes on to say that M informed him that:

This was the last straw for him residing with his mother as she is an alcoholic and he is sick of her erratic state of mind. 

51.I have particularly taken account of the primary consideration of the need to protect M from harm. 

52.I have taken particular account of M's views, at least as expressed by the father, in respect of the circumstances of this case. 

53.I take into account, obviously, the other relevant additional considerations that have relevance to the facts of this interim case. 

54.I propose to return the matter before me for the first day of hearing at 2.15 pm on Monday, 25 August 2008.  Consistent with the Court's case management process, the parties will, prior to that date, be interviewed by a family consultant, as will M, with a view to the family consultant providing a short report to the Court on that date outlining the issues seen by the family consultant to be directly relevant to the best interests of M.

55.Secondly, as indicated, I will order the appointment of an Independent Children's Lawyer and I anticipate receiving information from him or her on that date and, in particular, any information gleaned from material subpoenaed from the General Hospital and/or discussions with Dr B or other professionals who have had contact with either of the parties.

56.It seems to me that in the approximate six weeks pending the further return of the matter before me, bearing directly in mind the considerations by which I am bound to ascertain M’s best interests, pursuant to the legislation, the constraints on making findings in respect of conflictual factual matters and the seriousness of the prima facie allegations made in respect of M and the mother's care of him that it is in his best interests that he continue to live with his father until 4.00 pm on 25 August 2008 on which date the matter will be further heard by me. 

57.I think it is important that the mother have as much time with M as can be arranged.

58.Given the seriousness of the allegations and the concerns flagged earlier in these reasons, it seems to me that in that approximate six week period, M should spend time with his mother at, and supervised by a contact centre.

59.I will make an order in terms that both parties use their best endeavours to ensure that time occur at the Contact Centre for such periods and with such frequency as that Centre will accommodate during that period.

60.I will vacate the directions hearing set for 11 am on 17 July. There is no need to attend on that date then.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  18 July 2008