GINGHAM & GINGHAM

FAMILY COURT OF AUSTRALIA

GINGHAM & GINGHAM

[2010] FamCA 1015

FAMILY LAW – CHILDREN – Interim parenting orders while matter part-heard

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

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

APPLICANT:

Ms Gingham

RESPONDENT:

Mr Gingham

INDEPENDENT CHILDREN’S LAWYER:

Ms Vachon

FILE NUMBER:

BRC

2720

2010

DATE DELIVERED:

29 October 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

27, 28, 29 October 2010

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr R. Hamwood

SOLICITOR FOR THE RESPONDENT:

Crowley Greenhalgh Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms J. Brasch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Christine Vachon Solicitor

Orders

AND UPON THE UNDERTAKING OF THE FATHER PREVIOUSLY GIVEN TO THE COURT NOT TO DENIGRATE THE MOTHER IN ANY FORM IN THE PRESENCE OF THE CHILD OR PERMITTING ANOTHER PERSON TO DO SO IN THE PRESENCE OF THE CHILD

IT IS ORDERED UNTIL FURTHER ORDER THAT:

The Mother’s application for spending time with the child X born on … November 1997 prior to the resumption of the trial of this matter on 15 February 2011 is dismissed.
IT IS DECLARED THAT the presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (“the Act”) is rebutted in the best interests of the child, X, born … November 1997.
The father have sole parental responsibility with respect to “major long-term issues” as that expression is defined in the Family Law Act 1975 (“the Act”) in respect of the child, save that prior to the father making any major long term decision affecting the child (for example choice of high school next year) he will:
a.Advise the mother in writing of the nature of the decision to be made and matters he is considering;
b.Invite the mother to provide succinct written reasons with respect to her preference on the relevant issue;
c.Make the decision taking account of any written reasons provided by the mother and ultimately the child’s best interest;
d.Inform the mother of his decision in writing.
The father have sole parental responsibility with respect to issues that are not “major long-term issues” as defined in the Act in respect of the said children.
The child X, born … November 1997 live with the father.
The application made by the mother in respect of boarding school or schooling for the child in Brisbane is dismissed.
The child is at liberty to telephone the mother at all reasonable times (with such telephone calls to be initiated by the child) twice per week being Tuesday and Thursday between 7.00pm and 7.30pm.
The application by the mother for an order pursuant to Section 10 of the Federal Proceedings (Costs) Act for a certificate to issue in respect of the costs incurred by the mother and Professors C and P is dismissed.
The father do all such things and sign all such documents as are necessary so as to authorise and request Dr Y to provide to Dr L any information requested by Dr L but only in circumstances where Dr Y considers it professionally appropriate to provide that information to Dr L for the purposes of informing the mother of the diagnosis, medications given to the child, including treatment and concerns, if any, about compliance with any such diagnosis and treatment or medication/s, with the cost of providing such information to be borne by the father, but limited to the amount of $500, prior to the resumption of the trial in February 2011.

IT IS DIRECTED THAT

The father provide to the mother, at the address of the mother shown on the material filed in these proceedings:
a.copies of each and every report of whatever type or description received by him from any school attended by the child in the 2009 and 2010 academic years, including any report received at the end of the 2010 academic year;
b.copies of any school photos (either class photos, portraiture photos or photos of the child engaging in any school or extra-curricular activities) obtained by the father from the school in the academic years 2008, 2009 and 2010 within 21 days of today.
The father provide to the mother in writing, notice of any intention to enrol the child at any school other than S Boarding School within 3 working days of the formation of any such intention and, subsequently, within 3 days of any such intention being carried into effect.

AND IT IS FURTHER ORDERED THAT:

The final trial be adjourned for further hearing for three days commencing at 10.00am on Tuesday 15 February 2011 in the Brisbane Registry of the Family Court of Australia.
Pursuant to s 65L of the Act, the Director Child Dispute services shall appoint a family consultant to supervise compliance with these parenting orders within the meaning of the said section, and to thereby give assistance to the father and mother as to compliance with, and the carrying out of, these parenting orders and their obligations pursuant to these orders.
Without limiting the generality of this s 65L Order (or the occasions upon which the family consultant might choose to see the child or any or all of the parties), the family consultant appointed pursuant to the previous paragraph of this order shall:
a.As soon as reasonably practicable after the making of these Orders, discuss the matter with the Family Report writer, Mr W
b.As soon as reasonably practicable thereafter, see the child with a view to ascertaining the child’s views and attitudes as to the possibility of seeing his mother within the confines of the Court Counseling section
c.After seeing the child, the family consultant may invite the mother and/or father to attend (separately) upon the consultant
d.If the family consultant forms the view that it is in the child’s best interests, convene a meeting between the child and the mother within the confines of the Court counselling section
e.Make and record observations of all matters considered relevant during each and all of such sessions conducted by the family consultant for the purposes of giving evidence (if required) at the resumption of the trial in February 2011;
f.Consult with the Independent Children’s Lawyer and Mr W as considered appropriate.
AND IT IS NOTED, that between the date of this Order and the resumption of trial in February 2011, the Court counselling section will be unlikely to accommodate any more than three sessions in total.
AND IT IS RESPECTFULLY REQUESTED that the family consultant prepare a short report prior to the resumption of the trial in February 2011 to be forwarded to each of the parties to these proceedings and it is respectfully requested that family consultant conducting the s 65L process be available for cross-examination at the resumption of the trial on 15 February 2011.
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 Gingham & Gingham is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2720 of 2010

MS GINGHAM

Applicant

And

MR GINGHAM

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This matter can be seen to have started its life in proceedings before the Federal Magistrates Court, commencing in 2007. In November 2007, a parenting trial was conducted before Wilson FM over three days. At the conclusion of that hearing, Wilson FM indicated, that he would reserve his decision and deliver reasons at a later time. A small part of the transcript of that hearing is exhibited to the mother’s affidavit in this trial before me. It seems that the mother dispensed with the services of her then counsel and indicated to the court that, if Wilson FM was minded to make an order that gave significant care (using that term loosely) of the child to the father, that the child was, in effect, “better off being with him 365 days” and said to the Federal Magistrate that she would effect that by bringing the child to court.
As a result of those events, an order was made by Wilson FM on 7 November 2007. That order is, by its terms, plainly an interim order; it is expressed to be ‘until further order’. The order provides:
1.That the child, [X], born […] November 1997, live with the father, effective immediately.
The court further orders:
2. That [Ms Q] [a family consultant whose report was before the Federal Magistrate] give the father such assistance as is reasonably required, for the purpose of facilitating order 1 and in explaining to the child that any time he will spend with the mother is dependent upon an agreement between the mother and the father.
It will be appreciated that the order contains no provision for time between the child and his mother. Nor does it provide that there should be no time between the child and his mother.
It seems fairly clear that the mother, at least, and possibly the other parties, had an expectation (reasonable in the circumstances, as it respectfully seems to me), that the Federal Magistrate would deliver, within a reasonable period of time, both final orders and reasons for judgment. For all intents and purposes, the trial appears to have been concluded.
In that respect, it needs to be observed that the Magistrates Court is a court created pursuant to Chapter III of the Constitution and is, by its legislation, a court of record. It is extremely unfortunate – to say the least – that there are no reasons for judgment for the making of the interim orders, which were made on that day. It is even more unfortunate that no orders, nor reasons for judgment, were delivered in respect of the three-day trial that apparently then concluded, either timeously or, in fact, at all.
In March 2009, the mother filed an application in a case before Wilson FM. That application sought to re-open the proceedings before the Federal Magistrate and, in particular, sought to reopen those proceedings by reason, I gather, of new evidence, namely that the child was living with friends of the father, Mr and Mrs E, in southern Queensland, and attending a local school. That application by the mother was successful.
Subsequent to an order being made at that time permitting the re-opening of the proceedings, the matter was – again, strangely, as it respectfully seems to me – then adjourned or otherwise dealt with by way of procedural orders, on four further occasions until, on 26 February 2010, Wilson FM transferred the proceedings before him to this Court.
The file reveals no reasons being given for the transfer of the proceedings to this Court.
Nor does any of the material before me, including the file, reveal any reasons why (or as to how) it was that the re-opened proceedings were transferred to this Court in the absence of orders being made by the Federal Magistrate, in respect of the substantive proceedings, which the Federal Magistrate reopened, nor why orders were not made in respect of those proceedings.
It will be appreciated, then, that, by the time this matter came before this Court, a “trial” had been alive, between these parties, for two years or more, without any final determination.
Of particular significance, in the proceedings before me, for reasons which are the subject of disputed assertions and counter-assertions of fact, the mother has, at the date of the proceeding before me, not seen the child for about three years or so.
To say that this is unfortunate, whatever might be the merits or demerits of the case which she now seeks to agitate or, indeed, which the father now seeks to agitate, hardly adequately describes the situation.
Procedural orders were made by this Court, attempting to have this matter heard and determined as soon as possible. In the course of earlier procedural proceedings, in an attempt to give effect to that intention, the parties were asked to give their best estimate of the length of this trial. All of the parties, including the self-represented mother, indicated that they thought the trial would go three days.
With that in mind, on 22 June 2010, this matter was set down for three days, commencing 27 October 2010. It commenced, on that day, before me. Given the time that had elapsed, it seemed appropriate to hear them as “fresh proceedings” in the sense that no determination has ever been made on a final basis.
During the course of the second day of that hearing, it became apparent to me that there was no reasonable possibility of the matter concluding within three days despite my sitting, on at least two of the days, extended hours. With that in mind, a number of witnesses were interposed, to suit their convenience, including two expert witnesses, Professors C and P, commissioned by the mother and called by her.
I direct no criticism at all to the representatives of the parties or to the mother in giving the estimate that they did. I believe the estimate was given sincerely and conscientiously and I don’t attribute to any of them any fault in the matter proceeding for longer than what was anticipated at the earlier time.
When it became clear that the matter would take longer than three days, I canvassed two things with the parties. First, I indicated that further hearing of the matter, was, due to the commitments that I otherwise have in respect of matters already set down for hearing, not able to be held until three days in mid-February 2011.
I have undertaken to the parties to provide judgment, assuming that the trial concludes then, within four weeks of the conclusion of the trial.
At that time, the mother raised with me the issue of interim arrangements that might be made, given the approximate four-month delay between the conclusion of the third day of this hearing and its resumption in mid-February next year.
I asked the mother to advise the other parties of a broad outline of the orders that she might seek by way of interim order. The mother provided, at the commencement of the third day of hearing, a document which has been marked as Exhibit B in the proceedings.
That document sets out, as I gather, the mother’s current intentions with respect to the final orders sought by her and also contains a number of orders which she now seeks on an interim basis. I indicated, on the second day, that I would allocate, at the end of the allotted third day of hearing, time so as to enable the mother to make oral application (which I gave leave for her to do) for interim orders that she sought in the intervening period.
Ultimately, at the conclusion of the allotted third day of hearing, the mother sought a number of orders. Given her self-represented status, I did not require those to be provided with any sort of legal or pseudo-legal precision, but rather required of her a broad outline of the orders that are sought. They can be seen to be as follows:
1.That the child live with her, in a manner considered appropriate by the expert commissioned by her, who gave evidence before me today; Professor P.
2.That the child not be permitted to go to boarding school at S School, as the father proposes, as from the commencement year in 2011.
It is proposed by the father that the child would board at that school. The mother says that, in effect, the child should be required to attend a school in Brisbane, preferably an all boys private school. Yesterday, during the course of discussions about proposed orders, the mother made it plain that she had an expectation that the father would pay the fees relevant to that.
Thirdly, the mother seeks an order in respect of what might broadly be described as the provision of medical information in respect of the treatment of the child for ADHD.
That the child suffers from ADHD and attendant problems is uncontroversial. There are, however, very significant issues necessary to be determined by me ultimately, at the conclusion of the trial, about the extent to which his medical condition has been, and possibly is being, properly monitored and dealt with by the father.
The conflict in respect of this issue has, it seems on any view of the evidence, been lengthy and ongoing.
So much is this so, that the child had been seeing a paediatrician, Dr L, when in his mother’s care but is now seeing a different paediatrician, Dr Y, since coming into his father’s care.
The provision of information is a source of complaint by the mother. On the other hand, the father complains that the mother has, in effect, engaged in a relentless campaign of what might broadly be described as harassment (my word, not necessarily his) in respect of seeking information about the child.
This is a central factual dispute to be determined by me after the trial evidence is closed and submissions have been received.
During the course of evidence by Dr L and, more particularly, by Dr Y, it emerged that the two doctors were well aware of each other’s practices and respected each other’s professional expertise. In fact, Dr Y said that the two doctors cooperate in respect of other patients that they each have.
This appears to have been the catalyst for a suggestion that, in some form or another, the two doctors might be able to be involved in the care of the child, in some form, and more particularly, be involved in the provision of appropriate information to both parents about what is, plainly, a serious and troubling disorder suffered by the child.
However, it is important to point out that Dr Y was clear in his evidence, and, in any event, it seems sensible to me on the face of the evidence, that there be one, as it were, treating medical practitioner in respect of the child, so as to avoid any potential confusion about treatment and, in particular, any potential confusion about medication that he might be prescribed and compliance with that medication.
In very broad terms, the mother seeks orders so as to give effect to the sort of process that I have just described. As will be seen in a moment, orders proposed by the Independent Children’s Lawyer and the father seek a similar form of communication, but some added riders are suggested, in respect of it.
Fourthly, the mother suggests what, it seems to me, is in effect, an alternative to the first of the orders sought by her, (that the child live with her). She seeks an order that there be contact or time spent between the child and her, pending the further hearing, and that this time be, in effect, as guided or recommended by Professor P.
Fifthly, the mother makes application, in addition, for there to be telephone communication between the child and her on Tuesday and Thursday each week, with the child having liberty to telephone either parent, as she puts it, whenever he wants to.
Sixthly, the mother seeks an order pursuant to section 10 of the Federal Proceedings (Costs) Act, the basis for which will need to be explained in a little more detail in a moment.
Seventhly, the mother seeks that the undertakings earlier made in respect of the child, be discharged, with the exception of an order that the father not denigrate the mother, in any form, to the child.
The Independent Children’s Lawyer has prepared a series of orders sought by her, about which there is broad agreement by the father. I have earlier indicated on the record, those components of the orders with which the father agrees and those with which he doesn’t agree. The orders sought by the Independent Children's Lawyer are as follows:
UPON AN INTERIM BASIS IT IS ORDERED
AND UPON THE MOTHER’S UNDERTAKING, not to call, visit, correspond with or otherwise contact any school the child attends or is proposed to attend
1. All previous orders be discharged.
2.IT IS DECLARED THAT the presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (“the Act”) is rebutted in the best interests of the child, [X], born […].11.97.
3.The father have sole parental responsibility with respect to “major long-term issues” as that expression is defined in the Family Law Act 1975 (“the Act”) in respect of the child , save that prior to the father making any major long term decision effecting the child (for example choice of high school next year) he will:
a.Advise the mother in writing of the nature of the decision to be made and matters he is considering;
b.Invite the mother to provide succinct written reasons with respect to her preference on the relevant issue;
c.Make the decision taking account of any written reasons provided by the mother and ultimately [the child’s] best interest;
d.Inform the mother of his decision in writing.
4.The father have sole parental responsibility with respect to issues that are not “major long-term issues” as defined in the Act in respect of the said children.
5.The child [X], born […].11.97, live with the father.
6.Pursuant to s 65L of the Act, the Director Child Dispute services shall appoint a family consultant to supervise compliance with these parenting orders within the meaning of the said section, and to thereby give assistance to the father and mother as to compliance with, and the carrying out of, these parenting orders and their obligations pursuant to these orders.
7.Without limiting the generality of this s 65LOrder (or the occasions upon which the family consultant might choose to see the children or any or all of the parties), the family consultant appointed pursuant to the previous paragraph of this order shall:
a.As soon as reasonably practicable after the making of these Orders, discuss the matter with the Family Report Writer, Mr [W]
b.As soon as reasonably practicable thereafter, see the child with a view to ascertaining the child’s wishes to or response about the possibility of seeing his mother within the confines of the Court Counseling section
c.After seeing the child, the family consultant may invite the mother and/or father to attend (separately) upon the consultant
d.If the court counselling forms the view that it is in [the child’s] best interests, convene a meeting between [the child] and the mother within the confines of the Court counselling section
e.Make and record observations of all matters considered relevant during each and all of such sessions conducted by the family consultant for the purposes of giving evidence (if required) at the resumption of the trial in February 2011;
f.Consult with the Independent Children’s Lawyer and Mr [W] as considered appropriate.
AND IT IS NOTED, that between the date of this Order and the resumption of trial in February 2011, the Court counselling section will be unlikely to accommodate any more than three sessions in total.
8.The mother will communicate with the child by way of telephone call initiated by her to a landline number at the father’s residence once per week, being each Tuesday between 7 and 7.30pm
9.The child is at liberty to telephone the mother at all reasonable times.
10.The father, by this order, authorities the child’s paediatrician, Dr [Y] to speak with and discuss the child’s treatment with the child’s previous paediatrician, Dr [L].
11.The father by this order, consents to Dr [L] advising the mother, in writing, of the child’s progress as advised per Order 10 above.

The father submitted, in addition, a proposed orders with respect to the consultation between paediatricians and sharing of information earlier referred to, as follows:
That the father shall authorise the child’s treating paediatrician Dr [Y] to communicate to Dr [L], details of any significant event in respect of the treatment of the child [X], at the said doctor’s sole discretion, and that Dr [Y] not be obliged otherwise to respond to any request for information either from Dr [L] or from the mother.
That to the extent that it is necessary, the father authorise Dr [L] to disclose such details to the mother.
When this matter came before me on 22 June 2010, at which time procedural orders were made for what was hoped to be the final hearing of this matter in October, the mother’s pain at not being able to see her son was plainly obvious in the submissions that she made. She had not, at that stage, had face to face time with the child for a very lengthy period of time, despite having been, on any view of it, his primary carer up until 2007.
The plea by her, at that time, that she be permitted to see her son in some form, was accompanied by some (perfectly understandable) distress. I said at that time, however, this:
Yes, I understand that’s what you say and I’ve read that in your application. However, what is plain, on a reading of the material, is that by reason of whatever facts and circumstances may have got us to this point, it is a point that has been in place for some considerable period of time and there are a miscellany of very complex issues. They’re exactly the sort of issues that will be decided at a trial in about four months. Four months, I know, is a long time, you would say, when you haven’t seen your child for some considerable time. However, I am not prepared, given the very lengthy history of this matter, and the miscellany of issues that are plainly involved in it, to make an order on an interim basis, as it were, flying by the seat of one’s pants, prior to the trial taking place, all right? Now, are there any other orders that I need to make, in order to ensure that this trial takes place on those dates that I’ve indicated?
That passage came at the end of the plea for time that I have earlier referred to. As that passage makes clear, and by reason of other matters raised earlier on that occasion to the mother, there were very significant difficulties associated with making orders on an interim basis against the complex background about which the trial was to be directed and, ultimately, findings made.
The position, in that respect, is no different today, notwithstanding the fact that the trial is, in effect, at its halfway point.
For example, although I have now heard the evidence of Professors C and P, there are a number of matters that were put to each of those Professors, and answers given by each of them, that makes it vital that I hear the evidence of Mr W and Dr V, who is also a psychiatrist.
Obviously, I will also need to hear and read submissions from all of the parties before arriving at any conclusions about the evidence of each of those two gentlemen.
Thus, the position remains the same at the effective halfway point of the trial, in respect of the determination of factual issues, in circumstances where the mother has been cross-examined but no cross-examination whatsoever has yet been directed to the father.
Accordingly, as is plain from all the authorities which bind me, including earlier decisions of the Full Court such as Ciabo & Ciabo and more recently, in the post-Reform Act environment, Goode & Goode, it is not possible for me to proceed on an interim basis, on the basis of factual determinations about disputed matters.
Rather, I should proceed cautiously and only act upon those matters about which I can be tolerably satisfied prior to findings of fact being made when all of the evidence and submissions have been heard. I am acutely aware, then, of the obligations placed upon me by the legislation and what the Full Court has had to say about that in Goode & Goode – specifically in respect of the context of interim proceedings.
In particular, that decision is authority for the proposition that, merely because the proceedings are interim in nature, the statutory requirements are neither obviated nor truncated except to the extent to which parental responsibility is specifically dealt with in the legislation in respect of interim hearings.
Bearing those things in mind, I note that the orders sought by the Independent Children’s Lawyer which are agreed to by the father, include orders that there be a declaration that the presumption of equal shared parental responsibility is rebutted in the best interests of the child, and that the father have sole parental responsibility with respect to major long terms issues, as that expression is defined in the Act.
To that second provision is added a number of specific requirements upon the father, that he will:
a)Advise the mother in writing of the nature of the decision to be made and the matters he’s considering;
b)Invite the mother to provide succinct written reasons with respect to her preference on the relevant issue;
c)Make the decision, taking account of any written reasons provided by the mother and ultimately interests;
d)Inform the mother of his decision in writing.
During the course of the mother’s evidence in the witness box and also, subsequently, during the course of discussions and argument from the bar table, the mother has made it abundantly clear that she agrees with my perception that the evidence in this case plainly reveals beyond argument that these two parents are utterly incapable of engaging either in the process contemplated by section 65DAC of the Act or, indeed, in any form of any consultation that might be directed towards a joint decision being made about the child’s best interests.
That this is tragic goes without saying. Nevertheless, it remains, in my view, a stark reality for these two parents. Not only do I consider that the evidence plainly reveals – and, indeed, the mother concedes – that such co-operation and discussion is not possible, I consider that there is very strong uncontroversial evidence to suggest that an attempt to engage in any such process might, indeed, be counterproductive for the child, and involve more stress for him than might otherwise be occasioned.
I will make an order for “sole parental responsibility” to the father on an interim basis.
That being the case, to use the words of the Full Court in Goode & Goode, a decision about the child’s best interests is (on an interim basis) “at large.” The decision about what is in the child’s best interests, although at large, is nevertheless subject to the very significant constraint proposed by the nature of these proceedings (albeit that three days of evidence has already been heard).
I am acutely aware of those constraints in arriving at the decision that I do. The legislation, and, the Full Court decision which binds me, makes it plain that it is necessary for me, albeit in the truncated or curtailed circumstances to which I have just made reference, to consider the statutory Considerations and to give such weight to them as I consider appropriate.
It is plain that each of the parties, for related but different reasons, allege that the child is at risk in their respective care. It seems to me that this issue is beyond the scope of the current proceedings, in the sense that arriving at a decision about that Primary Consideration will involve the resolution of central factual disputes in this case.
That said, on an interim basis, I need to give consideration to whether the evidence presents a risk of harm in his father’s care that, in the absence of the factual findings to which I have just referred, indicates a risk so stark as to warrant what, in effect, is peremptory intervention in a situation that has now existed (for whatever reason and as a result of whatever rights or wrongs) for some three years. There is plainly no evidence before me so as to suggest that form of action.
So, too, allegations about what might broadly be described as family violence are referred to by each of the parties in the material before me and may well – not necessarily will, but may well be the subject of submissions and ultimate findings by me, at the conclusion of the trial. For the purposes of these proceedings, however, it seems to me that no such issues are directly relevant to the decision which I need to make today.
Plainly enough, the Primary Consideration of a meaningful relationship between each of the parents and the child needs to be carefully considered in any parenting case. I have commented before, and seek to emphasise again, that the undefined “meaningful relationship” has been referred to in a number of Full Court decisions. But, it is also, in my respectful view, worth bearing in mind what that great judge of this Court, Nygh J, said in a decision in 1983, called Cotton & Cotton, long before the legislature saw fit to introduce the notion of meaningful relationship into the Act.
Crudely paraphrasing his Honour in that case, he said that orders should always aim to promote a meaningful relationship between children and each of their parents, but only in circumstances where that relationship has meaning for the child.
Again, the broad issue of meaningful relationship, as referred to in the second of the Primary Considerations mandated to be considered by the legislation, will be a matter that I need to take into account earnestly when making the final orders in this case, at the conclusion of the evidence and submissions. For present purposes, however, that issue is, it seems to me, bounded by, and curtailed by, the situation that has existed now for some three years.
The child is all but 13 years of age. His views are, on one assessment, not in dispute. That is to say, the mother accepts that he is, at the present time, expressing a strongly held view that he doesn’t want to see her. The important issue, in respect of that specific Additional Consideration, that will need very careful consideration in the making of final orders, is the aetiology of those views.
Accepting, as the Full Court has alluded, that the word ‘views’, intentionally changed by the legislature from ‘wishes’, is a broader concept than the previous s 68F(2) would embrace, I have before me a report from a family consultant, Ms Q, prepared in 2007, based on interviews that took place with the parties and the child, on 24 May 2007.
At paragraph 37 of that report, Ms Q says:
[The child] (age 9 years and five months) was dressed in a [B School] tracksuit. He seemed confident when speaking with the interviewer and engaged easily in conversation. He did appear nervous about the interview process. He asked the interviewer and childcare workers, several times, if he would be interviewed with his father. [The child] was gregarious, humorous and chatty during the interview except when asked anything about parenting arrangements. At these times, he averted his gaze and answered, “I don’t know.” The impression was gained, [the child] wished to avoid talking about this.
I can see nothing in Ms Q’s report that indicates that, although the parties had separated in 2002 and had, it seems, been in conflict in one form or another for some time, that the child expressed any negative views about his father, despite having been in the primary care of his mother during that period of time.
So too, the closest that the child comes to expressing a negative view about his father, within that report, is contained only in the statement by Ms Q, in the paragraph just referred to, that, “he asked the interviewer and childcare workers, several times, if he would be interviewed with his father”.
Apart from that sentence, I can see no reference, by the child, to any adverse comments made about his father. The position then, on the evidence before me, other than from the parties, is that, as at May 2007, after the child had been in the continuous primary care of his mother for the vast majority of his life, the child was saying nothing adverse about either of his parents.
The events of November 2007, some six months after the report by Ms Q was prepared, have already been referred to. Subsequently, the child was seen by Mr W on 20 April 2009 and, subsequently, on 6 November 2009. The results of those interviews are contained in a report annexed to an affidavit filed on 17 November 2009.
In the period of approximately 17 months, between the child coming into the care of his father, in November 2007, and when he was interviewed by Mr W, on 20 April 2009, it can be seen that the child has formed views that might be described as being very definite.
Those views are recorded, among other places, in paragraphs 49 and following of Mr W’s report. Included among the things recorded by Mr W in those paragraphs, is the child saying at that time to Mr W (having been in the care of his father for about 16 or 17 months) that his mother, “never once asked to see me … she’s meant to call us. She refuses to call on the mobile. She says she’s meant to call on the landline”. Mr W goes on, “[the child] further explained that when he calls his mother, she often does not take the call. She has given him ‘lots of excuses’”.
Mr W then goes on to record the child talking about a number of excuses which he says his mother has offered for not contacting him or seeing him. At paragraph 51, Mr W records, “[the child] spontaneously stated that, ‘One of the reasons she [his mother] wants me back is to keep the house… The bankruptcy people will take it off her and also for the money”.
A number of other comments made by the child are reported Mr W. They are comments made by the child at a time when it is, as I understand it, common ground that he has not seen his mother for the approximate 16-month period to which I have just referred.
It will be observed then, that it might be concluded that there has been a significant change in what the child was prepared to tell an independent report writer during the timeframe earlier referred to.
It can also be seen then that the issue of the child’s views, broadly described, is the subject of contention and counter-contention between the two parties. The resolution of that issue will, of course, never, at any stage, be easy but plainly it requires the completion of a trial and submissions about that matter as being a central important component of the decision to be made by the Court. That is partially so in light of the child’s age and what the evidence reveals about his relative maturity.
Other Additional Considerations can be seen to be directly relevant to the interim decision. But, of course, most of those, including, for example, the relative capacity of each of the parties to parent; the responsibilities of parenthood exhibited by each of the parties; and the willingness and capacity of each of them to facilitate a relationship between the child and the other party are all very relevant, as it seems to me, among others, to the ultimate decision that needs to be made.
The factual matrix within which those decisions will be made is, as I’ve already said, complex. It would be a great injustice to that complex factual matrix to purport to suggest that any of those matters could be the subject of, as it seems to me, uncontroversial evidence at this time or evidence of the sort otherwise described in Goode & Goode as being evidence upon which a court could feel confident about proceeding.
That forms, in my view, the broad background to the interim decision which needs to be made today.
The first of the matters about which I need to make a decision is a matter agreed upon between the father and the Independent Children’s Lawyer, namely that all previous orders be discharged. The mother also seeks that order but adds a rider so that the proposed order reads as follows:
All previous orders be discharged provided the mother’s undertaking remain in force, in accordance with paragraphs 1.1 to 1.7 of the application filed by the father on 17 April 2009 and including the undertaking given to this court by the mother, with respect to [S School] on 27 October 2010.
By way of very broad description, those undertakings relate to the mother not having anything to do with the school which the child attends.
The undertakings sought relate to assertions by the father about the nature, extent and degree of the mother’s involvement with those schools, an example of which is the incident occurring in April 2007 at B School, the school which the child was then attending.
The mother says that there is no need for those orders to be made because she says she hasn’t contacted any school since she contacted the southern Queensland school where the child was attending in the first term in 2009.
Assuming that is the case, I asked the mother to identify the prejudice that she says would be caused to her if those undertakings were given and, in particular, if those undertakings were given on the basis that they were given without admission.
She says that the child is aware of those undertakings and it creates in him, as it were, a false impression of her as being somehow in the wrong or a nuisance. Secondly, she says that the father informs everyone of the terms of these things and, again, it creates a false impression of her to those people.
This assertion by her can be seen to have reflection in other assertions made by her, during the course of the trial, that the father has engaged in a defamation of her and a slandering of her character to a number of different people. Again, this is a factual issue that needs to be determined at the conclusion of a trial.
Thirdly, the mother suggested that the terms of the undertakings would prevent her from making contact with either Mr N, who is the head of head of the junior school at B School when the child attended that school in 2007, or other teachers or officials at that school. With respect to the mother, my reading of the undertakings is that they plainly would not prevent her from making contact with those people because, in terms, they are confined to schools which the child is attending.
It seems to me that the thrust of the orders sought against her cause the mother no prejudice in any meaningful way when balanced against the possibility – and I say possibility – that she may engage in behaviour of the type which it is asserted she has engaged in, in the past.
If I am ultimately persuaded of the truth of even a substantial part of the behaviour in respect of the schools and, in particular, B School that is asserted against her, it seems to me that this is something that I should seek to protect the child from. I am not persuaded that the mother suffers any prejudice that would outweigh that consideration, on an interim basis, for a period of four months until the middle of February.
Normally speaking, I would seek from parties an undertaking on the basis that undertakings are in the form of a solemn promise to the Court and might, in that respect, seem to be, if breached, more serious, in one sense, than if court orders are breached.
However, I don’t propose to ask a self-represented person who has plainly indicated an objection to those undertakings being made, whether or not, in light of my decision, they are prepared to give that undertaking. Accordingly, I propose to incorporate the thrust of those undertakings in mandatory injunctions directed to the mother.
Paragraphs 4 and 5 deal with parental responsibility, other than major long term issues and that the child live with his father on an interim basis for the reasons earlier indicated. It seems to me those orders are appropriate to be made at this time.
In saying that, the proposal by the mother is that there should be some form of child-sensitive and child-appropriate arrangement made that would have Professor P performing some role as an adjudicator of what might be proper or appropriate for the child, given his particular circumstances.

The mother makes that submission in respect of an order proposed by her that the child live with her, in the meantime, or as I apprehend, an alternative order that she have face-to-face time with him, bounded by the same considerations between now and February.
It seems to me that both of those proposals by the mother suffer from two significant difficulties. The first is that they require, as a precondition for their making, the abdication of what is essentially judicial authority to a person who is not a judge (or a parent), and effectively give to a person not a judge (or a parent) a decision-making role in respect of what may or may not be in the child’s best interests. I do not consider that I have power to make that order, nor am I prepared to make an order in those terms.
Further, and it seems to me, in a practical sense, as importantly, the orders seem to me to be, in any event, unenforceable in any sort of meaningful way. They require the determination by Professor P of an issue central to a determination to be made by me, which is, in turn, central to a decision about the child’s best interests, namely, what I should make of his views, apparently adamantly expressed, that he doesn’t want to have anything to do with his mother.
The genesis of those views – and if I find that those views represent his, as it were, “true views”, what may or may not be done, in respect of facilitating time, if indeed I come to the conclusion that it is in the child’s best interest for there to be face-to-face time, are matters for trial.
For those reasons, the orders sought by the mother are either beyond power and/or not appropriate to be made on an interim basis in the child’s best interests.
The next specific issue I need to determine is whether the child should, as it were, be prevented from attending S boarding school. The child commences grade 8 at the commencement of the 2011 academic year. The father proposes that the child board at S School, which is a private school, co-educational now, as I understand it, situated outside of Brisbane.
The mother’s contention is twofold, as I understand it. The first is that the child should be restricted to the Brisbane area, in terms of his schooling. Secondly, that he should, in any event, preferably attend an all boys private school, and that the father should pay those fees.
It might be argued to be undesirable that X (a child with special needs) attend a boarding school outside Brisbane when his parents live in Brisbane. It seems to me that, to the extent that this is a decision that needs to be made, it is a decision that should be made after a consideration of all of the evidence.
It is open to the father, by reason of the orders made in respect of parental responsibility, to decide to have the child attend at S Boarding School for the commencement of the 2011 academic year. That opens the possibility of, ultimately, an order being made, (hopefully at the end of March when I have undertaken to deliver judgment in this matter), of an order in a form similar to that now contended for by the mother, which would involve the child in changing schools.
That would be of more immediate concern to me but for the fact that, (again, whatever might be the rights, wrongs or reasons, historically associated therewith) the child has already attended a number of schools in the last three years. He attended B School for the first term in the 2007 academic year and thereafter, in that year, attended P State School until the end of 2008. As already referred to, he was placed by the father with friends of the father, Mr and Mrs E, in southern Queensland and attended a local school for first term in 2009. For the remainder of the 2009 academic year, he attended a suburban Brisbane school, where he has remained until now.
The evidence before me is clear and, indeed, uncontroversial that the child suffers from ADHD and that, understandably enough, has a number of manifestations, as both Dr L and Dr Y were at pains to point out during their evidence.
Included among the manifestations of that disorder is the potential for it to have an impact upon academic performance, on the one hand, but also to have significant ramifications in terms of behavioural issues within the classroom and social relationships with peers. It seems to me, open to the father, in light of the facts and circumstances pertaining to the existing situation that’s now been present for about three years, to make a decision that schooling for the child, at S School, is, until such time as a court orders differently, in his best interests.
I therefore dismiss the application made by the mother, in respect of boarding school or schooling in Brisbane.
The parties are not a long way apart in respect of telephone communication. The orders proposed by the Independent Children’s Lawyer would see the mother communicating with the child, by way of a telephone call initiated by the child to a landline or mobile number, once each week, on Tuesday, between 7 and 7.30 – that landline or mobile number to be provided by the mother.
The Independent Children’s Lawyer contends for a further order that the child be at liberty to telephone the mother at all reasonable times. The father objects to the second of those orders. I see no reason why I ought not make an order that a child who is approaching 13 should be at liberty to telephone his mother at all reasonable times, as he might decide.
The mother agrees to the gravamen of the order proposed in paragraph 8, in that she says she doesn’t want there to be any pressure on the child. Accordingly, she accepts, as I understand her, that the child should be permitted to initiate the calls with her. The difference between the parties, in that respect, is that the father and the Independent Children’s Lawyer would contend that possibility be open once per week; the mother would contend it be open twice per week.
It seems to me, again by reference to the child’s age and level of maturity, that he be at liberty to do so twice per week and I propose to order, in that respect, that such calls be permitted to be initiated by the child twice per week, being Tuesday and Thursday, between 7 and 7.30 pm.
The mother seeks, as she made plain during the course of her submissions that she seeks the continuation of an order that the father not denigrate her to the child.
I don’t know whether that undertaking was made without admission. I will take it as having been made without admission if, indeed, the father indicates that he is willing to give that undertaking on a without admission basis, upon his assent, then, I will accept the undertaking of the father, in terms of the existing undertaking given by him, made without admission, as to not denigrate the mother in any form to the child, or to permit other persons to do so in his presence.
The next matter that I need to deal with is an application by the mother for an order pursuant to section 10 of the Federal Proceedings (Costs) Act.
This order was sought in an application made by the mother prior to the hearing before me in June of this year. The basis for it was, and remains, a little unclear. In terms, it seeks that a certificate issue in respect of the costs incurred by the mother and, I gather, Professors C and P, but in terms refers to proceedings that were, on one view of it, not completed before Wilson FM.
To the extent that the mother asserts that there is any basis, pursuant to the Federal Proceedings (Costs) Act 1981 in respect of any proceedings before me, I find that there is no basis, whatsoever, for any such application.
If the application is, as I apprehend, in respect of the proceedings which the mother contends were incomplete before Wilson FM, it seems to me that there is a significant difficulty in my making that order, even if I considered that the circumstances were such as to invoke the potential application of the section.
It seems to me by, for example, reference to s 10(2) of that legislation that, if an order is to be made by me, it must be in respect of “proceedings” which are before me that satisfy the conditions to which the section refers – death, resignation, removal, dismissal from office, protracted illness and the like.
Any application made pursuant to s 10, (whatever might otherwise be its applicability or inapplicability), made in respect of proceedings before Wilson FM cannot be directed to me for the making of an order. That part of the application by the mother is dismissed.
There are two issues remaining. The first is an order about which there is broad agreement, in principle, but in respect of which the terms remain a matter of some contention. This proposed order refers to the evidence given by Dr Y and Dr L that I have earlier referred to.
I should first say that it seems to me entirely appropriate that the mother should be made aware of any diagnosis made by the child’s treating paediatrician, any proposed treatment suggested by that paediatrician, any medication or changes in medication made by that paediatrician, and that paediatrician’s assessment of the compliance with any treatment or medication suggested or recommended by that paediatrician.
It seems to me plainly in the child’s best interests and consistent with the Principles and Objects of the legislation that both of his parents should be completely across any such diagnosis, treatment, prescriptions and the like.
As against that, it seems to me if, (I repeat, if) the assertions made by the father as against the mother, with respect to what I will broadly call “harassment” or what might be seen by him to be interference with the regular, consistent management and treatment by one doctor of the child’s condition, should be avoided.
It seems to me that, balancing those two things can be achieved by requiring the father to do all such things and sign all such documents so as to authorise Dr Y to provide to Dr L, (who is the paediatrician in whom the mother plainly reposes significant trust and who gave evidence before me), details of any changes to the diagnosis, treatment, prescription or any concerns about compliance with any of those things that differ from the reports prepared by, and evidence given by, Dr Y in the course of these proceedings.
To the extent that it is necessary, it seems to me that the father should do all such things and sign all such documents as are necessary so as to authorise Dr L to disclose such details to the mother.
The final issue that I need to determine is a course of action proposed by the Independent Children’s Lawyer and opposed by the father.
The Independent Children’s Lawyer proposes that I make an order pursuant to s 65L of the Act. That section provides for assistance to be given by family consultants to parties, or children, or both, in respect of orders made by the Court.
At my request, the Independent Children’s Lawyer has made inquiries of the Director of Child Dispute Services, within the Court, and informs the Court that, in the time available, and within the resources available, to the Child Dispute Services, it is likely that a family consultant would be able to assist, in a form considered appropriate by the family consultant, on three occasions between now and the resumption of this hearing in mid-February.
The Independent Children’s Lawyer submits, in effect, that this provides one last chance, in respect of attempting to facilitate a relationship between the child and his mother. I’m not sure that I would put it like that, nor do I necessarily accept that as a proposition, (although, I understand, I think, the basis upon which the submission is made).
The order is opposed by the father because he says that the child has already been exposed to an independent person, namely Mr W inquiring of him his views in the report to which I’ve referred, in 2009 and in very recent times, ahead of this trial, the evidence in respect of which Ms Brasch, counsel for the Independent Children’s Lawyer, opened on the second day of the hearing.
The mother herself indicates that she is concerned about pressure, or any additional pressure, being brought to bear upon the child. The submission made by her seems to be by reference to what she would assert is pressure that would be exerted on the child by the father to say to any family consultant those things which the father would wish the child to say.
That issue is plainly central to the assertions she makes about the child’s expressed views and their genesis and is, obviously enough, a matter that must ultimately await the conclusion of the trial and the findings emanating there from.
There is, however, the potential for pressure, quite apart from that. This 13 year old boy has been, as it were, asked to express his views by Mr W now on three occasions within a period of about 18 months. I don’t remotely suggest, in the absence of any evidence to the contrary, that Mr W has done so otherwise than in an entirely appropriate and child-focused and child-centred way.
Nevertheless, this boy is approaching 13 years of age and must be, as it seems to me, aware (and, indeed, seems to have been plainly aware in 2007), that his parents are in significant conflict about him. The notion that the child might be exposed to that sort of pressure worries me and, it seems to me, provides a solid foundation for resisting an order of the type proposed by the Independent Children’s Lawyer.
On the other hand, there is the potential for people with expertise, albeit in a somewhat limited setting, and within a relatively truncated period of time, to assess how the child might react to face-to-face time with his mother and to provide, for example, data for the court, at the conclusion of the trial, about optimism for such a process or a similar process as being a means by which orders for time might be facilitated between the child and the mother if it is concluded that orders of that type are in his best interests.
In that respect, Professor P, who I emphasise has seen neither the father nor, importantly, the child, proposes what I will call, rather crudely, forms of “immersion” as a means of addressing what he would seem to opine is “alienation” of the child from his mother.
That opinion begs a number of questions, none of which can be answered now. Nor do I purport to have any inkling of the answer now. But it seems to me to be at least one possibility that is raised for consideration in respect of ultimate orders that might be made by this Court.
This Court has an obligation, as made plain by decisions of the High Court, to suggest or consider, subject to procedural fairness, proposals that the Court might consider meet the child’s best interests even if not contended for by any of the parties. It seems likely that the mother will, in some form or another, contend at the conclusion of the trial for orders akin to the orders which she now seeks by way of interim order, with respect to the child living with her and/or spending time with her.
In their current form, they may well be beyond power or jurisdiction but orders akin to them might need to be considered by the Court, if it is determined by the Court that is in the child’s best interest to attempt to facilitate time between he and his mother, despite what appears to be conceded to be his adamantly held views that this should not occur.
It seems to me that, in light of those circumstances, on balance the s 65L process contemplated by the Independent Children’s Lawyer, may well provide important data central to the child’s best interests, so as to allow those matters to be further considered in the light of other evidence before the court.
On balance, I am not persuaded that any potential detriment to the child outweighs the potential for benefit in arriving at a decision that might be in his best interests, ultimately.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 29 October 2010.

Associate:

Date: 15 November 2010

[2010] FamCA 1015

29 October 2010

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Family Law

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