Frome and Frome

[2010] FamCA 196

FAMILY COURT OF AUSTRALIA

FROME & FROME [2010] FamCA 196

FAMILY LAW – CHILDREN – With whom a child spends time – Meaningful relationship with both parents – Systems abuse

Family Law Act 1975 (Cth)

C v C [1989] 2 All ER 465
Goode v Goode (2006) FLC 93-286

APPLICANT: Mr Frome

RESPONDENT: Ms Frome

INDEPENDENT CHILDREN’S LAWYER: Ms Hawdon as Town Agent

FILE NUMBER: BRC 8078 of 2009

DATE DELIVERED: 26 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 26 February 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Hardy of Best Wilson Family Law

SOLICITOR FOR THE RESPONDENT: Ms Barbour of Anthony Black Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Lyrene Wiid Lawyer &
Migration Agent

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

IT IS ORDERED THAT:

1. The matter be adjourned to the Magellan Registrar with a view to the Magellan Registrar making such directions for final hearing as might be necessary in consultation with the Independent Children’s Lawyer and the solicitors for the parties so as to permit the hearing to be heard in the period mid to end July 2010.

AND IT IS NOTED THAT the parties’ best estimate for the length of the final hearing is four (4) days.

1. Any sessions with any such counsellor or psychologist involving the children H born … February 2001, and S born … January 2002 (“the children”) be shared on the basis that the father pay for two out of every three sessions and the mother pay for one out of every three sessions.

IT IS FURTHER DIRECTED THAT:

1. The Independent Children’s Lawyer shall make enquiries of Ms C or such other counsellor/psychologist whom the parties and/or the children consult pursuant to the terms of the consent orders made today with a view to requesting Ms C or such other counsellor or psychologist to provide to the Independent Children’s Lawyer, and through her the Court, with all such information as she considers ought further inform the opinions of Ms L and/or Dr M and/or the decision of this Court in respect of a determination about the children’s best interests.

2. Nothing in the provisions of the previous order must be taken as requiring Ms C or other relevant counsel/psychologist to reveal any matter which is considered by her better in the children’s best interests to remain confidential so as to better facilitate the counselling or therapeutic process being undertaken by them.

3. In the event that (but only in the event that) Ms C or other relevant counsellor/psychologist provides information in relation to the previous order, the Independent Children’s Lawyer shall obtain from Ms L and/or Dr M as the case may be, any such further opinion either might wish to give in light of the information provided by the counsellor/psychologist.

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.

MINUTES OF CONSENT

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:

1. The counselling undertaken by the child [S] born […] January 2002 with Dr [H] cease forthwith.

2. The parties and the children attend upon a counsellor/psychologist as nominated by the Independent Children’s Lawyer in consultation with Ms [C], and participate in such individual and joint sessions as may be directed by the counsellor/psychologist.  The mother shall facilitate the children’s attendance at the said sessions.

3. The Independent Children’s Lawyer have leave to publish documents in the proceedings to the counsellor.  The Independent Children’s Lawyer shall be the sole legal representative to contact and/or liaise with the counsellor.

4. Each parent shall pay for the costs of their individual sessions with the said counsellor/psychologist.

5. Order 16 of the Orders dated 13 November 2009 be amended to remove the words “[D] Christian School” and insert the words “[T] Primary School”.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:   BRC 8078 of 2009

MR FROME

Applicant

And

MS FROME

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter comes before me on the first directions date in the Magellan list in circumstances where orders had previously been made by the Federal Magistrates Court, by Cassidy FM on 13 November 2009.  At that time, the Federal Magistrate was confronted by allegations and denials in respect of what can broadly be described as inappropriate behaviour directed by the father towards the younger of his two children, S, born in January 2002.  She has a brother H, born in February 2001. 

2. The evidence reveals that S, who I notice in some reports is referred to as "…", has been exposed to a plethora of interventions, interviews, requests to recount allegations and the like.

3. This is so much so that, when Miss C, who is a psychologist practising in the area where the parties reside, was, through the means of a court order, asked to participate in the family, she says this: 

   Before any contact with the family I had been made aware by [the father’s] solicitor that [S] had been taken to the Department of Child Safety, the police, numerous other doctors, had an interview with journalist, [GA], and has most recently had counselling sessions with psychologist, [Dr H].

4. In light of that, Ms C says: 

   Knowing the extent of particularly [S’s] contact with other professionals and non‑professionals, with regard to the abuse allegations [which I should interpose involved her at one stage being videotaped apparently by the journalist Miss AG] I was adamant that if I had to have contact [as per the court orders] I would provide a space for the children to talk about their family situation if they wanted to, but there would be absolutely no pressure from me for them to engage with yet another strange professional. 

5. If I may say with respect, the approach of Miss C, and her plainly very significant concerns about the extent to which S, in particular, had been exposed to various interviews and the like, was not only appropriate, but the same issue is also of utmost concern to me.

6. In that respect, it is also interesting to note that in a family report prepared by Miss L, dated 6 November 2009, it is noted that: 

   The Department of Child Safety noted, following the initial investigation, that there was no substantiation of the allegation, but there was concern as to the emotional abuse as a result of potential subsequent subjection of the children, particularly [S], to assessments and interventions and so forth in relation to sexual abuse.

7. It ought be said that the Family Law Act makes no distinction between sexual abuse and any other forms of abuse and it is plainly the case that emotional abuse can be just as serious as any other form of abuse.  

8. Against that background, the parties, by agreement today, place orders by consent before the court that:

   Counselling undertaken by the child, [S], with Dr [H] cease and that there be one counsellor/therapist/psychologist who monitors the counselling of the children [should any such counselling or therapy be recommended, in any event] with it to occur either with Miss [C] or such other appropriately qualified person who might be nominated by the independent children's lawyer in consultation with Miss [C]. 

9. Unfortunately, Miss C is due to go on maternity leave in May and, as a result, if counselling is considered appropriate, the children will need to see yet another person.  Other orders by consent involved a change of school or a change in the school that was contemplated by the orders made by consent before the Federal Magistrate.  

10. In addition to those orders by consent, an oral application is made on behalf of the father.  By that oral application, the father seeks to vary paragraph 6(c) of the orders made by consent before Cassidy FM.  That order provides for time between the father and H to occur from 9 am until 4 pm each Sunday, with change‑overs to be facilitated at the local Children's Contact Centre.

11. The father proposes, in that oral application, that that order should provide for time to occur between 1 pm Saturday and 4 pm Sunday each alternate weekend. 

12. The basis of the application is a simple one.  H, now 9, deserves to have a meaningful relationship with his father. So much is plain from the express provisions of the Family Law Act which includes that relationship as a primary consideration for the court to take into account in determining the best interests of children.

13. The father is in the difficult position which is dictated by the fact that until such time as a trial can occur that has as its centre the factual assertions and denials in respect of serious or potentially serious allegations of sexual abuse by him of S, that time between he and S is suspended.  He does not see S at all. 

14. That is further exacerbated by the fact that at least some material before the court indicates a reluctance on S’s part to see him.  There is evidence before me from Miss L about that reluctance.  She says, for example, at paragraph 10.23 of her report:

    It is noted that on the mother's reports [S] has been assessed by the general practitioner as depressed, although this was not consistent with her presentation during the report process.  In fact, she and [H] presented as generally happy, articulate, outgoing children who engaged well with each other and with the adults in the maternal family.  They did not indicate any distress in the context of the interviews including with regard to talking about their father. 

15. Significantly, though, as it seems to me, Miss L went on to say:

    This was notwithstanding, obviously, the distress observed in [S] when, with her mother, when concerned on the second day of interviews that she may have to see her father.  Nevertheless, she recovered quickly and resumed her happy outgoing disposition once she was reassured that she would not be communicating with/or having time with her father.

16. There is very little doubt that the basis for that expressed reluctance on S’s part (if found to be accurate) will undoubtedly be examined at the trial.  For present purposes, though, that reluctance mixes with the unestablished, but nevertheless significant, allegations of inappropriate sexual behaviour allegedly disclosed by S.

17. Those factors, undoubtedly, combine to produce the unfortunate situation that no time at all is spent between S and her father.  No such allegations attend the father's relationship with H. 

18. Miss L, in her report - unsurprisingly, as it seems to me - suggests that there ought be some concerns on the part of all concerned, including the court, about the delineation in the positions of each of S and H, in terms of the time they spent with, and their relationship with, their father.

19. Notwithstanding those matters, however, Miss L goes on to say in her report:

    Regarding [H], it is suggested that at this juncture that, rather than the parties continuing to work out what time he should spend with his father, this be defined.  It is suggested that [H] recommence having meaningful time with his father each week, perhaps on Saturday from 9 am to 4 pm and facilitate his sporting commitments with the mother being precluded from attending in order to ensure no difficulties between the parents and this impacting upon [H].  Sharing activities will also minimise the intensity for [H] who will have some concern regarding [S] not being present.

20. That ultimate opinion is reflective, perhaps, of observations and opinions made by Miss L, recorded earlier in her report where she says for example:

    Nevertheless, the willingness of [H] to spend time with his father during the report process, and the observation of their positive interactions in this regard, indicated that his relationship with his father has been strong historically and that he is likely to enjoy his time with his father if this is positively supported.  

21. The solicitor for the mother argues that the application by the father ought not be heard by reason of it coming orally and without notice and it being unsupported by any affidavit material which deposes to their being any change in the circumstances pertaining at the time when the parties agreed to the specified time ultimately embodied in the orders made by the Magistrates Court.

22. She submits that her client is prejudiced by reason, herself, of not being able to put on evidence in that respect and, in support of that, points to what Miss C says, at paragraph 12 of her short report, that: 

    While [S] does not spend time with her father due to the abuse allegations, and she told me that she does not wish to spend time with him, I’m aware that [H] does spend Sundays with his dad.  [H] told me that he wants to see his dad, but not as often as he does.  

23. In the course of that submission, however, the balance of that paragraph was not referred to.  There Miss C says: 

    It is impossible to ascertain at this point whether [H’s] wishes in relation to his father represent his true concerns or whether he is simply taking the path of least resistance. 

24. That comment, too, occurs in the context of the concerns that Miss C expressed about prior interviewing of these children and their involvement with multiple agencies and persons, in respect of which she says:

    My limited contact with the family has been deliberate on my part.  I am concerned about the number of professionals and non‑professionals involved to date. 

25. Accordingly, Miss C’s comments about H ought be seen in the admitted context just described, i.e. limited contact with the family.

26. The report of Miss L is indicative of a strong relationship between H and his father and also indicative of there being no indications from H that there should be any significant curtailment of that.

27. The independent children's lawyer in this matter submits that there is likely to be, or may be, more significant pressure placed on H if, contrary to what seems plainly to be the mother's antipathy towards same, pressure might be put on H as a result.

28. The independent children's lawyer submits that she is concerned, on the children's behalf, about the amount of pressure that has been put on them already and the effect that these allegations made against the father, and the resulting intervention by a number of people, professionals and non‑professionals alike, may have had upon the children.

29. She accordingly says that to move to greater time now may in fact be, as it were, counterproductive.

30. I am not persuaded that, although the application is made orally by the solicitor for father, the mother suffers any prejudice thereby.

31. Although it is true that the mother has not had the opportunity to put on evidence in respect of assertions central to her opposition to the orders sought by the father, it seems to me that any such evidence would, in any event, be caught by the restrictions inherent in an interim parenting process (as to which see the comments of the Full Court in C v C [1989] 2 All ER 465 and more recently in Goode v Goode (2006) FLC 93-286.

32. The Court would, in my view, be confronted by factual assertions and counter‑assertions, whether in respect of H’s wishes or otherwise, that, within the context of an interim proceeding, could not be determined.  Accordingly, the court would have before it, on any such application, in terms of evidence about which it could feel relatively confident (as to which, again, see Goode v Goode (2006) FLC 93-286 the reports of Dr C and Miss L earlier referred to.

33. It is plain, by reference to the provisions of the Act itself, and by reference to the decision of the Full Court in Goode v Goode (2006) FLC 93-286 that, even in such narrow and truncated proceedings such as these, the court must have regard to the Objects, Principles and Considerations mandatorily required to be considered by the court.

34. Principal among those, in the context of the current allegations and considerations, is the benefit to a child of having a meaningful relationship with both of the child's parents, on the one hand, and the need to protect the child from physical or psychological harm on the other.  As is so frequently the case, the two matters that are said to be primary "considerations", within the context of establishing what is in a child's best interests, are in conflict.

35. The essential question is, in my view, really this: if the court can conclude that there is benefit to H in seeing more of his father than what the current orders dictate, is that met, and indeed overridden, by concerns that the court might have about psychological harm, resulting not only from the matters enumerated in section 60CC(2), but from factors pertaining to H in his current circumstances.

36. I am not particularly influenced by the consideration of H’s wishes (more accurately, “views”), notwithstanding what Miss C says in the first part of paragraph 12: 

    This is plainly a highly conflicted situation in which plainly the children have said a number of things to a number of individuals on many occasions.

37. It is, in my view, entirely unsurprising that Ms C records the children saying (and would that their parents would listen): “Both children told me that they were sick of talking about things”.  Miss C goes on to say “It was clear they were referring to the current family situation”.

38. Views, then, are not a consideration persuasive of the order that should be made in this case. I am equally not persuaded that other additional considerations referred to in section 60CC(3), are particularly germane to the issue at hand, truncated though it is.  The essential issue remains that which I posed earlier.

39. My ultimate conclusion is that, however understandable the father's position may be, I think it is too early to increase the time provided for in the consent orders between the parties.

40. That is particularly so, given that the orders, understandably, provide for each of the parents, and in particular the children, to undertake a counselling process which - one can only hope - will focus on their general well‑being rather than the obtaining of “evidence” (or what is considered to be the obtaining of evidence) by either of the parties.

41. It needs to be said, I think, that parents are always in an invidious position when serious allegations are made about a child and when, by reason of the large number of cases in the court involving serious allegations with respect to children, the matter can't be determined at a trial (as it should be) for some considerable time.  

42. Invariably, as a result of that time lapse, parents suffer.  More particularly, children suffer.  They suffer whether ultimately allegations at the centre of the case are made out or whether they are not.  They suffer because children deserve to have this disorder and uncertainty in their life resolved as soon as is humanly possible so that they, too, can get on with their lives.

43. In that context, though, it seems to me entirely consistent with the provisions of the Act and the best interests of children generally that courts ought obey the old medical adage that they should first do no harm.

44. It is probably of cold comfort to either parent, in circumstances where the factors just mentioned cause the sorts of disruption to parent/child relationships that I have just mentioned, to know that, ultimately, at a trial the court's task is a broad-based one.  That is to say, as the High Court and the Full Court have made clear, when this matter comes on for trial, it will not be a trial about sexual abuse, it will be a trial about the best interests of these children. 

1. If it is considered by a court that one parent has emotionally abused the children, that is just as serious a matter, in the absence of findings of other sorts of abuse, as if the instant allegations of abuse were themselves made out.

2. So too, the Act makes it abundantly clear that the court must take into account a number of considerations, included among which are matters such as: 

   The willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent. 

3. The other mandatory considerations for the court to take into account include the capacity of each parent to provide for the needs of the child, including their emotional and intellectual needs.  So too, the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents is mandated as an important consideration to be taken into account in the ultimate determination of what parenting orders are in the best interests of the children.

4. With those comments, I conclude my reasons for rejecting the oral application made by the father.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date: 15 March 2010