Eldridge and Eldridge

[2009] FamCA 785

FAMILY COURT OF AUSTRALIA

ELDRIDGE & ELDRIDGE [2009] FamCA 785

FAMILY LAW – Children – Best Interests – Parenting Responsibility – General obligations

C v C (1996) FLC 92-651
Goode v Goode (2006) FLC 93-286

APPLICANT:   Mr Eldridge

RESPONDENT:   Ms Eldridge

INDEPENDENT CHILDREN’S LAWYER:     Mr Emerson

FILE NUMBER: BRC 4170 of 2008

DATE DELIVERED: 27 July 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 July 2009

REPRESENTATION

APPLICANT:   In person

COUNSEL FOR THE RESPONDENT: Mr B.W. Thiele

SOLICITOR FOR THE RESPONDENT: Rhonda Sheehy & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Emerson Family Law

Orders

1. Subject to compliance with the directions in the following paragraphs of this order, the matter be adjourned to a callover of matters awaiting trial at 9.30am on 18 December 2009 before Justice Murphy in the Brisbane Registry of the Family Court of Australia.

2. IT IS NOTED THAT the current estimate of the length of trial is 3 days and this matter is likely to be heard in February/March 2010.

3. All parties file and serve the affidavits upon which they intend to rely at the trial by 4.00pm on 14 October 2009.

4. Each party file and serve an outline of case document by 4.00pm on 27 November 2009 setting out:

   a.a precise minute of orders sought;

   b.a list of documents to be read in their case;

   c.a chronology;

   d.a list of issues for determination; and

   e.a brief summary of argument.

5. Contemporaneously, with the filing of the document outlined in paragraph 5 of these orders, all parties shall file a certificate of compliance, signed by all of them (or on their behalf by a legal practitioner) which:

   a.certifies that the case is, in all respects, ready for trial;

   b.contains an accurate estimate of the length of the trial, as determined following consultation between the parties and/or their legal representatives,

   c.specifies the name of the legal practitioner, if any, who will conduct the final hearing on behalf of each of the parties;

   d.lists the names of any expert witnesses who are required for cross-examination and the date or dates upon which they are unavailable to do so.

6. A Registrar shall conduct a compliance check 14 days prior to the callover listed for 18 December 2009, to ascertain that this matter is, in all respects, ready for trial, and if possible, such hearing shall be conducted by telephone without requiring the personal attendance of any party.

7. Upon the Registrar being satisfied that the trial is, in all respects ready, the Registrar shall counter-sign the certificate of compliance, and upon the Registrar so counter-signing, the matter shall be placed on the list of matters for the callover earlier referred to.

8. Should the Registrar determine that the matter is not ready for trial, Order 1 is vacated and the matter shall be relisted for mention before Justice Murphy at a time and on a date to be advised.

9. In the event that the parties reach agreement in respect of final orders, liberty is granted to forward minutes of consent signed by all parties by email copied to all parties, and addressed to the chambers of Justice Murphy at [email protected] and if considered suitable, consent orders will be made in chambers without the necessity of appearance by any party and all directions will be vacated.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The order made by Federal Magistrate Jarrett on 27 January 2009 is discharged.

2. The father, and through the agency of the father, the paternal grandfather and his wife, be at liberty to provide letters and cards to the children provided any such letters or cards are first sent to the Independent Children’s Lawyer.  The Independent Children’s Lawyer open all such letters and cards and only passes to the legal representatives for the mother such correspondence that the Independent Children’s Lawyer considers appropriate given the ages and stages of development of these children. 

AND IT IS FURTHER ORDERED THAT

1. The legal representatives for the mother are granted leave to inspect and copy all documents produced pursuant to subpoeane as might be considered appropriate upon her undertaking, given today, that no such documents produced from Queensland Health relating to the psychiatric care of the father be shown to the mother save for the express purpose of obtaining from the mother any instructions strictly necessary to the future conduct of future proceedings. 

2. The Independent Children’s Lawyer is granted leave to inspect and copy all documents produced pursuant to subpoeane.

3. The Independent Children’s Lawyer is directed to produce two copies of all such documents copied by the Independent Children’s Lawyer with such documents to be forwarded to the father.

4. The Independent Children’s Lawyer has liberty to remove from any such documents to be provided to the father any details which might identify the address of the mother, the address of the children, the school of the children or any other such details that may reveal the living arrangements for the mother and children and/or school arrangements for the children. 

5. 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 Eldridge & Eldridge is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC4170 of 2008

MR ELDRIDGE

Applicant

And

MS ELDRIDGE

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter comes before me for the first day of trial in accordance with this court’s less adversarial trial process.  Prior to that occurring, the matter has had a lengthy history in the Federal Magistrates Court before a Federal Magistrate transferred the matter to this court. 

2. In the course of that litigation path, a number of expert reports have been prepared in respect of this family, culminating most recently in the Children and Parent Issues Assessment prepared by Ms B, who is a family consultant attached to the Brisbane registry of this court, and who prepared that assessment in accordance with this court’s Child Responsive Program, mandatorily invoked upon a parenting application being commenced here.

3. On 27 January 2009, Jarrett FM made orders that:

   The father spend supervised with the children for up to a maximum period of two hours per week on such days and such times as can be accommodated by the [E] Contact Centre, and that the paternal grandfather and his wife may, at their option, attend at the contact centre for any or all contact visits.

4. In addition, Jarrett FM ordered that:

   The father, paternal grandfather and his wife be at liberty to provide letters or cards to the children, provided that any written communication is first vetted by the contact centre staff.

5. The background to this matter includes the father being the subject of two Involuntary Treatment Orders made pursuant to the Mental Health Act (2000) (Qld) in October 2002 and in January 2004. 

6. By definition, pursuant to the statutory requirements under that legislation, the Involuntary Treatment Order involves a finding by a psychiatrist that, at that time, the father was suffering from a mental illness and the nature and extent of that mental illness was such so as to require the making of the Involuntary Treatment Order.

7. It appears that, pursuant to those orders, the father was an inpatient at a mental health facility for some periods of time. 

8. The background to this matter further involves the father having been gaoled on three occasions for breaches of domestic violence orders.  Those gaolings appear to have occurred in about April 2006, March 2007 and September 2007. 

9. Earlier, Jarrett FM had made a recovery order in respect of the children, in circumstances where, after an ordered period of time, the father had held the children over. 

10. Consequent upon the making of that order, Jarrett FM made an order that there be no time between the children and their father and, subsequent to that, made the order on 27 January 2009 earlier referred to. 

11. The father accepts evidence which is otherwise before me that his conduct in and about time spent at Y Centre has resulted in that contact centre refusing to have him as a client.  The evidence also reveals that no other contact centre reasonably available to the parties will have him as a client. 

12. In any event, the father says that he does not wish to exercise time with the children at a contact centre.  He doesn’t believe that supervision is necessary.  He doesn’t like the attitude exhibited by those at a contact centre who, he says, act more like policemen than anything else. 

13. Against that background, the decision that needs to be made currently is a decision on an interim basis about the best interests of these four children.  Specifically, the decision is as to what time, if any, the children should spend with their father in the approximate eight or nine month period that is likely to elapse prior to this matter being finally determined at a trial. 

14. The restrictions inherent in the making of decisions on an interim basis, particularly with respect to parenting, have been the subject of earlier decisions by the Full Court, including most notably C & C.  In the post-reform Act landscape, those same principles have been referred to in the decision of the Full Court in Goode & Goode. 

15. Those earlier cases, and the Full Court decision in Goode & Goode, make it plain that, in circumstances where a decision is being made before the parties have had the opportunity to give evidence in the witness box and to be cross-examined and, thus, for the evidence to be properly analysed in the light of that oral evidence, recourse should be had to less contentious matters and to matters which cannot seriously be the subject of significant dispute.  It might also be said that recourse can also be had (cautiously) to evidence independent of the parties, particularly evidence from independent experts.

16. In that latter respect, the court has available to it a family report from Mr Y, a consultant social worker, a family report from Ms D, a consultant social worker, two reports from Dr C, who is a consultant psychiatrist, and the Children’s and Parents Issues Assessment by Ms B earlier referred to. 

17. In that respect, the father readily acknowledged before me that there was, to use his words, a “consistent stream” running through those various reports.  With that view of his, I respectfully agree.  In fact, those reports are remarkable in their similarity and in what they reveal about a number of matters directly relevant to the best interests of these children.

18. I am, of course, cognisant of the necessity for interim parenting proceedings to be determined by reference to the statutory Objects, Principles and Considerations just as much as final proceedings (see Goode & Goode).  Of course, that determination occurs within the parameters earlier described. 

19. In this case, as in so many cases, central to such a decision is, on an interim basis, a collision between the two Primary Considerations, being the benefit to children of having meaningful relationships with each of their parents on the one hand, and the need to protect children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence on the other.

20. As will be plain from the matters about to be discussed, a number of Additional Considerations, as well as matters directly relevant to the Objects and Principles under the legislation, are clearly acutely exemplified by the evidence before me. 

21. I propose to have recourse to that “consistent stream” of expert evidence to which the father referred, noting not only its consistency, but also the poignancy of the matters there contained relating directly to the children, and the concerns, and the level of concern, expressed independently by each of those report writers. 

22. Excerpts from the report of Ms D were referred to the father by me during the course of discussions as part of the first day process.  I asked the father what he made of what the children described to Ms D.  I told him that the statements relayed by the children to her made me feel like crying.  I wondered what they made him feel like.  The record will reflect what he said. 

23. For present purposes the children were asked, for example, what they would do if they were given magic.  R, who was then about six, said:

    Mummy would do her usual stuff and Dad would be good again.  He wouldn’t get angry. 

24. E said, among other things:

    I would put a spell on my mum and dad and make them forget what happened so they could be together.  Yes, I would like to visit Dad.  I don’t want to live there in case he doesn’t take us back to Mum’s. 

25. N said:

    Yes, I would like to see him.  I would ask him what he has been doing for the last few years.  I like living with my mum. 

26. If he were magic, he would: 

    Be 29, because you don’t have to go to school.  With Mum and Dad, I would make them be nice to each other.  Dad would need the most magic for that to happen.  I would see each of them every three weeks. 

27. That report of Ms D was prepared some time ago.  As will shortly emerge, the views of the children have not changed in any material respect, save that Ms B is of the view that the children exhibit - clearly and manifestly – a genuine fear of their father.

28. The attitude to utilising a contact centre by the father, earlier referred to, was evident even in the earlier report of Mr Y.  At paragraph 29 of that report, Mr Y records:

    Whilst querying the wording of the latest order and saying he cannot fulfil it, the father acknowledges that he will not utilise a contact centre.  Further, [the father] said that he probably could not even live with a standard regime of unsupervised contact.  As to whether the father would retain the children or not after contact, the father cannot give any cast-iron assurances.

29. The attitude of the father to the mother, and, it seems, to women in general, is evident by a number of statements made by the father to the various report-writers. 

30. For example, in the report of Ms D at paragraph 4.3 on page 5, she records the father saying of the mother the following - I interpose here that at a time during the first day of this matter when Mr Emerson was making submissions to me about the father’s attitude to the mother and the way he expresses that, the father nodded his head, and I confirmed with him that he agreed with all that Mr Emerson was saying.  Ms D reports the father saying about the mother, at paragraph  4.3 of her report:

    I hate her.  She is the most disgusting, vile person … I think she was just looking for money … if I had stayed with her and fucked the slut, she would have charged me with rape … she treated me like a piece of shit … I have made thousands of phone calls and slipped up with some of them, because I used words like “fuck,” “cunt,” “slut” or “bitch” … domestic violence orders are only based on assumption.

31. In the following paragraph of that same report, the father is recorded by Ms D as saying:

    When I was under the Involuntary Treatment Order - I should have taken the axe and smashed her in the head … then I couldn’t be held responsible … I learned that out at Griffith University.

32. Ms D then comments:

    The smugness with which he shared this reflection adds to the seriousness of the content. 

33. In respect of the occasion when he refused to return the children, the subject of the recovery order earlier referred to, Ms D records at paragraph 4.9:

    … yeah, I refused the children, but they didn’t want to go back to the bitch … I don’t want them growing up with someone who tells constant lies about me being an outright fucking nutcase.

34. I should interpose here that the father is described by the various report-writers as being an intelligent man.  There is not the slightest shadow of a doubt that he knew, and understood completely, that all of the matters that he was saying to the various report-writers were being recorded by them and would be used by them during the course of court proceedings. 

35. More widely, the father’s attitude towards women is submitted by Mr Emerson as being of some concern.  That submission is supported by the most recent report of Dr C.  In respect of a woman, Ms G (who the father says will be a witness at the final hearing of this matter in his case) Dr C reports as follows:

    … [the father] is now living in [M] with another woman, [Ms G] (53) who is doing a fitness course.  Her four-year-old son resides with them, and, asked about his relationship with this lady [the father] told me, “I just fuck her.”  He went on to tell me it was “just a sexual thing,” and went on to tell me that he was:  “over women … most of them are just trash”. 

36. When I asked him, the father indicated to me that, in contrast to the mother, he did not regard either Ms G, or another woman, Ms V (who apparently will also give evidence for him at the final hearing) as “trash”.

37. The comments made by the father, which might be thought to be not only utterly inappropriate and disgraceful, are, in my view, indicative of the attitude he has towards the mother and, as Mr Emerson suggests, to women in general, at least in the way in which he has expressed them. 

38. They speak ill of his willingness or capacity to communicate with the mother (or perhaps any woman) about arrangements for the care of the children, whether they reside with him or with the mother. 

39. More troubling still is that precisely the same sorts of attitudes are exemplified by the father with respect to the children. 

40. The children, at the time that Ms B saw them, were aged 12, 10, nine and eight.  In evidence that, again, would make any sane, caring person who was also a parent want to weep, Ms B records T (age 12) as saying of his father:

    “I am not scared he will hurt us.  (pause)  I am scared that he will hurt Mum.”  [T] got a little choked up and filled up in the eyes.

41. T further stated to Ms B that he did not want to see his father any more, claiming, “It’s not worth the risk,” and later said to her, “I don’t want to see Dad.” 

42. That evidence, together with other, similar comments made by the other children, supports the submission of Mr Emerson that, in the period between when Ms D saw the family and now, the children have, as it were, hardened in their views about not wishing to see their father.  Mr Emerson speculates that this may be as a result of relatively recent events at the contact centre, when it is asserted that the father was in the car park with a baseball bat.

43. Directly relevant to the issue earlier referred to, however, and starkly relevant to the additional consideration of the responsibilities of parenthood exhibited by a parent towards their children is a comment made about the children themselves to Ms B.  Ms B says this:

    It was explained to [the father] that the children had reported feeling scared as a result of his behaviour, to which [the father] responded by saying:  “I have a right to know this stuff, it’s called being a father.  Children cannot withhold information from their father.  Of course they are fearful, because they know they are doing the wrong thing.It’s these type of things that drive fathers to throw kids off a bridge.”

44. It might be observed that no one knows what causes people to throw children off bridges. But it is certainly something that is neither rational nor capable of justification or rationalization. It is either insanity or completely immoral, disgraceful, utterly contemptuous behaviour by that person towards their children.

1. Next, and in a similar vein, the father is also recorded by Ms B in these words:

   [The father] was asked to comment on how he might feel if the court ordered that the children continue to live with their mother.  His reply was, “I don’t talk in hypotheticals, that’s not an option.  While they’re not going to talk to me, it’s not going to work … you see it becomes a progression of a parent getting the shits and that’s what drives fathers to throw their kids over bridges.”

2. In what I consider to be a particularly troubling - and particularly poignant - passage in Ms B’s report, Ms B records this:

   For example, when the family consultant commented that [T], [N], [E] and [R] were lovely children, he responded by saying, “They are a bunch of arrogant arseholes.  They do not respect me any more”.

3. That a father would say that about his children is almost beyond belief. 

4. That a father would say that to a family report-writer, knowing that his comments are to be reported to a court, is incomprehensible. 

5. What that says about the father’s capacity to parent, what it says as an exemplification of the responsibilities of parenthood and what it says about the father as a man  hardly needs to be commented upon. 

6. Ms B goes on to say:

   When it was suggested that they were fearful of him, [the father] stated that he could understand why the mother was fearful of him and claimed that, indeed, she should be scared of him. 

7. In that context, says Ms B, the father was reminded that the children had reported that they felt scared when he yelled at them.

8. One might think that a responsible, caring, loving father would react to such a comment from a family consultant in a concerned, worried and loving way.  This was the father’s response. 

   He responded by saying, “Good, let’s have another contact next weekend.  If they fear me, maybe they’ll respect me. I won’t have my kids controlling me.  I control them.  That’s my prerogative.” 

9. It is necessary to say that, in the context of the Family Law Act, the father could not possibly be more wrong.

10. The Act makes it abundantly clear that in the usual course of events, children have a right to know and be cared for by their parents.  Moreover, they have a right to have their parents participate in their lives in a loving, caring and meaningful way. 

11. Mostly, however, children have an absolute right to be children.  Children have an absolute right to be loved and cared for and nurtured by those from whom they - properly - seek that love and care and nurture. 

12. I have not seen one solitary piece of evidence before me that suggests that the father has the slightest idea about any of those matters.

13. Normally speaking, a court would be extremely reluctant to make an order the effect of which is to not have children, particularly children of this age, see their father.  The reasons for that are not only found in the Objects and Principles and Considerations in the legislation, but in things such as human decency and human experience. 

14. Human experience teaches (irrespective of what is contained in the Family Law Act) that children need to be, and deserve to be, loved and cared for by each of their parents.  But sometimes parents abdicate that responsibility in the most appalling of ways. 

15. I consider on the evidence before me that the father has abdicated that responsibility in the most appalling of ways.

16. This is, in my view, an exceptional case.  Even at an interim hearing, on the basis of what the father himself admits to be a “consistent stream” of expert evidence over a long period of time, it is difficult for me to see what possible benefit there could be in subjecting these children to what is highly likely to be nothing but fear from a father who treats their legitimate fears as something that is contemptuous and not even worthy of comment. 

17. I have not the slightest hesitation in saying, on an interim basis, that it is in the best interests of these children that they do not see their father or communicate with him, save in the manner described broadly in paragraph 3 of the order made by Jarrett FM.  I will, for the sake of clarity, discharge that order and order in similar terms with some additions.

18. For the reasons just given, I discharge the order made by Jarrett FM on 27 January 2009. 

19. I order in lieu that the father, and through the agency of the father, the paternal grandfather and his wife, be at liberty to provide letters and cards to the children provided that any such letters or cards are first sent to the independent children’s lawyer; that the independent children’s lawyer opens each such letters and cards and only pass to the legal representatives for the mother, such correspondence as the independent children’s lawyer considers appropriate given the ages and stages of development of these children. 

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  31 August 2009