Flutter and Flutter

[2009] FamCA 786

FAMILY COURT OF AUSTRALIA

FLUTTER & FLUTTER [2009] FamCA 786

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth), ss 60CC(3), 69ZW, 91B

APPLICANT: Mr Flutter

RESPONDENT: Ms Flutter

INDEPENDENT CHILDREN’S LAWYER: Ms Chan

FILE NUMBER: BRC 6736 of 2007

DATE DELIVERED: 17 July 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 17 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Baston

SOLICITORS FOR THE APPLICANT: Nitta Stratton-Funk & Associates

COUNSEL FOR THE RESPONDENT: Mr Page SC

SOLICITORS FOR THE RESPONDENT: Mcphee Lawyers

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. This matter be referred to Registrar Turner for the making of trial directions on 7 August 2009 at 12 midday.  It is noted in that respect that Registrar Turner will use best endeavours to ensure that this matter is heard and determined at a trial estimated to take five days in October or November of this year. 

2. The parenting orders made by Slack FM on 16 May 2007 be varied so as accommodate the following parenting orders.

3. Upon the undertaking of the mother to not apply for a passport in respect of the child and to not take nor attempt to take the child outside the Commonwealth of Australia pending written agreement between the parties or further order of this Court, I order that until further order:

   (a)       That the child lives with the mother;

   (b)       That the child spends time with the father as follows: 

   (i)for up to two hours once per fortnight or such other or additional times as might be recommended by Ms O, family consultant, pursuant to section 65L of the Act, with Ms O to provide a report to the Court consequent upon that time;

   (ii)additionally, the child shall spend time with her father on Tuesday from 12 pm until 4 pm and on Saturday and Sunday each week from 10 am until 2 pm, such time to be supervised by the paternal grandmother or such other person agreed to in lieu between the parties and approved by the Independent Children's Lawyer, with such time to commence on Saturday, 18 July 2009;

   (iii)that changeovers in respect of the time provided for in the previous order take place at the park in … Road, B.

4. I grant liberty to the parties to apply on the giving of three days' written notice.

5. I order that neither parent shall engage the child in any therapy or counselling without the prior written consent of the other party and the Independent Children's Lawyer without first obtaining an order of the Court.

6. In the event that either or both of the parties wish to avail themselves of a parenting orders program, I will direct that the family consultant, Ms O, provide such assistance pursuant to section 65L of the Act as might be considered appropriate so as to enable that to occur.

7. I will give the legal representatives of the parties leave to copy such documents produced pursuant to subpoena and note that the legal representatives are bound by an obligation to not disclose or otherwise disseminate any such documents to any person for any purpose whatsoever.

8. I note that this matter has had an extensive history of litigation in both the Federal Magistrates' Court and the Family Court, and it would be desirable if the parties were saved any further or additional expense by being given leave to rely upon such affidavits and other evidence as is relevant earlier filed by either of them.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6737 of 2007

MR FLUTTER

Applicant

And

MS FLUTTER

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 16 May 2007 Slack FM made parenting orders in respect of a child, a daughter, born in November 2005.  The child was then but a tiny baby. 

2. On 23 November 2007 Purdon-Sully FM dismissed contravention applications and made orders with respect to counselling and also varied the parenting orders. 

3. On 14 July 2008 the father filed a contravention application and on 11 November 2008 Purdon-Sully FM found that contravention to have been made out and “make up time” was ordered. 

4. On 13 February 2009 the father filed the application which sounds in the instant proceedings, seeking an order that the child live with him and spend time with the mother.

5. The mother responded to that application on 7 April 2009 seeking orders that the child live with her and spend time with the father as determined by the Court. 

6. The following day, 8 April 2009, the mother filed a Notice of Child Abuse in Form 4, in which she alleged that the child was at risk of sexual abuse at the hands of her father. 

7. On the following day, 9 April 2009, Slack FM appointed an Independent Children's Lawyer, ordered a report pursuant to section 69ZW of the Act, made an order pursuant to section 91B of the Act and transferred the proceedings to this Court.

8. The matter was thereafter designated as one suitable to this Court's Magellan list and has been managed in that list since that time. 

9. It was mentioned in that list before me on the first occasion on 29 April 2009.  On that occasion I adjourned the matter until the Magellan list held today and consent orders were made for the preparation of a family report and psychiatric assessment of each of the parties by Dr M. 

10. On 2 June 2009 a family report prepared by Ms O issued. That report recommended, in very broad terms, that the child live with her mother and that overnight time with the father cease, that the parents attending the POP program at Relationships Australia, and suggested an ongoing section 65L order.

11. On 25 June 2009 Dr M prepared a psychiatric report which was subsequently annexed to an affidavit by her filed on 10 July 2009.  Dr M opines, among other things:

    Each parent appears bonded to the child.  The father appears aware of her developmental needs.  It is a matter for the Court to decide whether the mother has underestimated the importance and value of the child's relationship with the father.

    The parents are at this stage hostile to each other and it is my view that the child aware of this whether or not either has actively alienated the other.  In view of [the child’s] age it is difficult to attach weight to comments she has made.  The unusual language quoted, whilst not being particularly comprehensible, adds some weight to the conclusion that she has not been coached in her comments.

    I agree that [the child’s] primary attachment figure is her mother, but it appears that she has a valuable relationship with the father and his family and friends.  Obviously, if she is to have free and flexible contact with the father, this would lead to the probability of further allegations of sexual abuse.  If the allegations of sexual abuse are found to be falsely made, the most therapeutic option for the child would be to be in the care of the father and to undergo supervised contact with the mother.  If the Court finds that the father has sexually abused the child, in my view it would be in her interests not to have contact with the father.

12. Ms O in her family report says, among other things, this:

    This is a complex matter where all possible options present some benefits and limitations.  If it is the decision of the Court to maintain the current parenting orders then it is highly likely that [the child] will continue to experience behavioural signs of chronic trauma and have little ability to adaptively cope with her feelings of being caught in the middle of her parents' conflict.  Furthermore, it is my opinion that if orders are left unvaried the conflict between the parents could escalate even further as they continue to up the ante to win the Court case.  Consequently, the damage to [the child] would also intensify.  If it is the decision of the Court for the child to live with her father then it is my opinion that [the child] will experience intense distress because her primary attachment is clearly to her mother.  Furthermore, the relationship between father and daughter is at present fractured and needs time to strengthen in a way that is not overwhelming for [the child].  If it is the decision of the Court for the child to live with her mother then it is my belief that the child is at risk of emotional damage by her mother (and grandparents) if they do not change their presently steadfast mindset of [the father] as dangerous and of [the child] as vulnerable and in need of protection.

13. Those short extracts from the two expert reports in this matter serve to illustrate the complexity of the issues which will confront the trial Court that hears and determines the applications for final orders in this matter. 

14. Against that background, the father today seeks orders for unsupervised time with the child. 

15. I will today make an order that the matter be listed for trial directions before Registrar Turner on 7 August at 12 midday, with a notation that this trial, estimated to take five days, should take place, if it can possibly be accommodated, in October or November.  I note in that respect that Dr M, who, it seems, will be an important witness at the trial, is absent overseas during the whole of September. 

16. During the course of argument a reference was made by me to a position that would pertain for approximately 13 weeks.  By reason of Dr M’s absence, the instant determination needs to be made in respect of a time period that is approximately four weeks longer than that.

17. The issue that needs to be determined, then, is what orders are in the child’s best interests in the next four or five months, when a trial will occur, at which many complex issues will be canvassed and about which findings will be made. 

18. A tragic consequence of the making of allegations of sexual abuse in this Court, when the number of matters waiting to be determined at a trial exceeds the available time to accommodate them, is that interim arrangements have to be put in place by Courts based on evidence which, almost always in cases of this type, consists of assertions and counter-assertions by each of the parties in respect of an issue of acute importance for the best interests of these children. 

19. Appropriately, the Court determines to resolve those issues, at a time prior to the evidence being properly tested, in a conservative way, and to predominate the elimination of risk to the extent that Court orders can do so.

20. Mr Baston, who appears on behalf of the father, asserts that there is no significant evidence of risk for the child if the orders made by Slack FM are returned to.  That would provide to the father what Dr M effectively referred to as “free contact” with him, if not flexible contact with him. 

21. Mr Baston argues that, whatever might be the complexities of this case and the profound difficulties caused for the child by the (utterly unacceptable) degree of conflict between her parents, that does not result in a determination by this Court that there is a degree of risk sufficient to prevent the child spending unsupervised time with her father. 

22. I adopt, with respect, the extra-curial comments made by Fogarty J in an article written by his Honour in the Australia Journal of Family Law in relation to risk.  The comments made in that article can be seen to reflect comments made by his Honour in decisions of this Court, for example, in N & S & The Separate Representative, and by other Judges of this Court and other judgments of the Full Court including, for example, in Re W Abuse Allegations. 

23. In essence, the former judge points out, (and decisions of the Full Court have also pointed out,) that in arriving at decisions where risk of harm to a child is an issue, the nature of the risk and its extent must be taken into account. 

24. Moreover, as the Act makes quite clear, the issue of risk to this child is not confined to a risk of sexual abuse at the hands of her father, but rather risk in a much broader sense occasioned by what might be described as the mother's belief system with respect to the father presenting a danger to the child, and a risk clearly identified by each of the experts emanating from the degree of conflict between the parties. 

25. The decision, (even on an interim basis, as the Full Court made clear in Goode), must be taken by reference to the statutory Objects Principles and the Considerations referred to in section 60CC(3) of the Act.  I take all of those matters into account. 

26. I particularly take into account that the legislation evidences a clear intention that, subject to the best interests of the child, both parents should play an appropriate meaningful role in the life of their child.  That is no less the case here in circumstances where, whatever allegations might be made and whatever counter-allegations might be made, none of those allegations or counter-allegations are, as yet, substantiated or made out.

27. Interim proceedings such as this, in circumstances where evidence - including, I emphasise, expert evidence - has not been tested or challenged, needs to be made on the basis of the facts which form a foundation upon which the Court can feel comfortable, balancing on the one hand any risk in the broad sense earlier referred to, and on the other those statutory edicts by which the Court is bound. 

28. I am not prepared to make orders facilitating unsupervised time between the child and her father on the evidence before me. 

29. Whilst many of the matters raised by Mr Baston in argument may well be highly important and highly relevant matters to be considered by a trial Judge, it seems to me that a number of findings need to be made about contested evidence and about expert evidence, (which, as Mr Page SC, who appears for the mother, indicates, will be the subject of challenge) before a determination could be made that unsupervised time should be ordered, or indeed, that any other order should be made with respect to the child’s relationship with her father.

30. By the same token, if the father maintains a case - and I say no more at this stage other than that the material hints of such a case by the father -that the assertions made by the mother in respect of his abuse are, at best, for her, convenient, and at worst, deliberate false assertions, then findings to that effect at a trial may well result in very significant findings that might sound in relief different to that which the mother currently contemplates. 

31. At the current time it seems to me that the matters mandated by the legislation to be taken into account and the balancing of those matters against any risk shown by the evidence before me, indicates that I should make orders that the father spend more time than what he currently spends with the child, but that that time continue to be supervised.

32. The Independent Children's Lawyer contends for orders which have helpfully been provided in the form of draft minutes. 

33. Those orders provide for two hours of time each fortnight to be facilitated by the family consultant Ms O, pursuant to section 65L of the Act.  Neither party challenges an order in that respect being made. 

34. In addition, those proposed orders suggest that the child spend time supervised with the father on Saturday and Sunday of each week for four hours between 10 am and 2 pm, such time to be supervised by the paternal grandmother or such other person agreed to between the parties and approved by the Independent Children's Lawyer.  Those orders also seek changeover at the Eight Mile Plains Contact Centre.

35. Dealing with the last matter first, neither party supports the order for changeover at the Eight Mile Plains Contact Centre.  The reason the Independent Children's Lawyer seeks that order is because of the ridiculously high level of conflict existing between these two parents and the adverse impact that such behaviour clearly has on a child of this child’s age.  The order is sought as a means of attempting to alleviate that conflict at the time of changeover. 

36. There are, however, significant geographic issues in this case.  The mother lives in the Ipswich area, the father in Brisbane’s sout-west.  Current arrangements between them see the child spending time with the father supervised by his mother as well as by a person nominated by the mother at a park at B, which is approximately halfway between the respective households.

37. I required Mr Page SC to seek specific instructions from the mother and to place on the record her attitude with respect to the paternal grandmother. 

38. After receiving instructions Mr Page informed the Court that the mother did not trust the paternal grandmother to provide the supervision contemplated by the orders mooted by the Independent Children's Lawyer. 

39. Mr Page SC, on instructions, submitted that, in addition to the paternal grandmother there should be another person present at the same time for the purposes of any supervision ordered by the Court, nominated by the mother. 

40. None of the evidence before me satisfies me that any risk posed by time between the father and the child cannot be met by the paternal grandmother being the sole supervisor of such time.  No evidence before me satisfies me, on an interim basis, that the paternal grandmother would not act in anything other than a child-protective way so as to ensure the safety of the child whilst in the father's care.

41. The father indicates through his counsel that he has made arrangements to take time off from work on Tuesdays, and indeed, via the use of long service leave, to otherwise make time available for time to be spent with the child. 

42. The child’s history of co-parenting post-separation together with the Objects and Principles enshrined in the legislation, point to it being appropriate for her to spend, on an interim basis, significant time with her father provided any risk said to arise from the evidence can be alleviated. 

43. In my view, the child’s best interests would see her spending time with her father on Tuesday, Saturday and Sunday each week between 10 am and 2 pm, with that time to be supervised by the paternal grandmother. 

44. I will order accordingly.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  31 August 2009