GRAHAM & HOBBES

[2011] FamCA 170

FAMILY COURT OF AUSTRALIA

GRAHAM & HOBBES [2011] FamCA 170

FAMILY LAW – CHILDREN – With whom a child spends time – Children’s views

Family Law Act 1975 (Cth)

APPLICANT: Ms Graham

RESPONDENT: Mr Hobbes

FILE NUMBER: SYC 1970 of 2007

DATE DELIVERED: 14 March 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 16 February 2011

REPRESENTATION

THE APPLICANT IN PERSON: Ms Graham

THE RESPONDENT IN PERSON: Mr Hobbes

Orders

1. I order that a family report be prepared by the family consultant which addresses only the following matters:

   (a)       Relevant history; and

   (b)The views, perceptions and wishes of each of the children M born … March 1993, J born … December 1996 and L born … July 2002 in relation to their current living arrangements and whether they should be spending any time or having any communication with their mother.

2. In the preparation of the report the family consultant is to ensure that the children do not come into contact with their mother.

3. In the preparation of the report the family consultant is to meet with each of the father and the mother separately and on separate days for the purposes of accumulating relevant history and understanding the basis each pursues orders in this Court relative to the children.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: SYC 1970/2007

Ms Graham

Applicant

And

Mr Hobbes

Respondent

REASONS FOR JUDGMENT

Background

1. Before the Court is an amended initiating application filed by the mother on 3 November 2010. By that application she seeks that orders made on 27 July 2007, 26 February 2008 and 24 November 2009 be revoked. She also seeks to be able to have contact with each of her children, M, J and L. Other orders are sought by her in relation to the children.

2. By his response filed 1 February 201 the father opposes each of the mother’s applications whether sought as final orders or interim orders as set out in her application filed 3 November 2010.

3. This matter has a lengthy and complicated history. The orders made on 27 July 2007 were made against the mother and her friend Ms B. They were referred to as the respondents in those orders. The orders included the following:

   1. That the respondents remove the Google blog titled “[…]” from the internet by 4.30pm by 27 July 2007.

   …

   4. That both the respondents be restrained from approaching the children namely [M] born […] March 1993, [J] born […] December 1996 and [L] born […] July 2002.

   5. That both respondents be restrained from contacting and communicating with the children by written correspondence, orally or by any other means.

   …

4. The above orders were made by consent.

5. The orders made 26 February 2008, which the mother seeks to have set aside are as follows:

   ..

   2. The children [M] born […] March 1993, [J] born […] December 1996 and [L] born […] July 2002 live with their father.

   3. The father is to have sole parental responsibility for the long term welfare of the children along with the day to day care of the children.

   4. The mother, [Ms Graham] (formerly […]) have no contact with the children.

   …

   I note the application for final orders filed 19 March 2007 and mentioned before me today is at the instigation of the mother.

   I note the mother has informed the Court that she would not be in a position to seek alternate orders to seek time with the children until she has accumulated evidence in relation to allegations she has raised with the Court about the father.

6. The orders made on 24 November 2009 were made in the absence of the mother, however, they were made on a day when the mother had been notified that the case was before the Court and she had declined to attend. On that day the Court made the following order:

1. The mother, [Ms Graham] is restrained from approaching any of the children, [M] born […] March 1993, [J] born […] December 1996 and [L] born […] July 2002(“the children”) and is further restrained from contacting either directly or through any other person and/or communicating with the children by any form, be it written, oral or otherwise.

…

1. On that same day the following order was made:

   …

   2. On or before the close of business on Wednesday 23 December 2009 the mother is to advise the Court in writing,  whether she proposes to attend at Court for the purpose of pursuing her application filed on 23 October 2009. In the event that she says she is not well enough to attend at Court, she is to provide details to the Court of how she proposes to proceed with the application. If the mother does not comply with this order then the application will stand dismissed as and from that date and time and the interim order made today against the mother will become a final order of the Court.

2. On 25 March 2010 I granted leave to the mother to file an initiating application and affidavit noting that the earlier proceedings in relation to the children had been finalised. I excused the father from attendance before the Court until he had otherwise been notified by the Court that his attendance was required. On that day I noted as follows:

   …

   5. I note that given final children’s orders were made relatively recently the mother will need to satisfy the Court, as a preliminary matter, that circumstances have changed which warrant further proceedings being instituted.

3. On 12 April 2010 the mother appeared before me. Discussion took place with the mother as to the circumstances in which the Court might grant leave for her to proceed with her application. On that day the Court made the following orders:

1.Prior to the determination of the mother’s application to commence proceedings seeking parenting orders in respect of the children [M], [J] and [L] the mother is to file in Court a report by [Dr P], or another psychiatrist of her choice, which addresses the following matters:

a)That the mother has capacity to prosecute the parenting proceedings in the Family Court albeit in circumstances where she is not required to come face to face with her former husband [Mr Hobbes];

b)That she is currently well in terms of mental health; and

c)She has the capacity to care for her three children on at least a short term basis (that is overnight for two or three continuous days).

2.I note that [Ms Graham] has given evidence today that she can not afford a legal representative. She has been refused legal aid as recently as February 2009 and that as a consequence she will have to represent herself.

3.I grant leave to [Ms Graham] to re-list the matter before me again once she has been able to file the report referred to in these orders.

1. The matter was next before the Court on 27 July 2010 when the mother appeared. On that occasion the mother informed the Court that she would be travelling overseas for several months commencing 1 August 2010. Accordingly the mother’s application listed for 29 July 2010 to commence further proceedings in relation to the children was adjourned until the mother’s return from overseas and her notification to the Court that she would be proceeding. On that occasion the mother indicated that there was a possibility she would return only for a short period of time as she may then move overseas to reside with her new partner.

2. On 3 June 2010 the mother filed an affidavit which annexed a letter/report from Dr W dated 27 May 2010 relating to the mother’s mental health. That report provided evidence, inter alia that the mother had the requisite capacity to prosecute proceedings in the Court in relation to her children. Dr W was then asked to address the following question, “That [Ms Graham] is currently well in terms of her mental health.” In answer to that question Dr W said:

   I am not able to state with confidence either that [Ms Graham] is well in terms of her mental health (apart from reactive anxiety and vigilance appropriate to her circumstance) or that she is unwell in terms of her mental health. It seems that [Dr R] found herself in a somewhat similar position and offered a qualified opinion to the Court. The other psychiatrists seemed to be less qualified in their opinions, however, with the exception of [Dr P], there is not an indication from their reports that she outlined fully the beliefs which she has about her ex-husband, her immediate family and others.

3. In relation to the heading “That [Ms Graham] has the capacity to care for her three children on a least a short term basis (that is, overnight for two or three continuous days)” Dr W said as follows:

   If it is the case that there is not a factual basis for the central elements of [Ms Graham’s] belief, then it is possible that she might act recklessly or on the basis of misinformed beliefs in such a way that would be harmful to the children. These risks may range from simply frightening them with false information, or trying to implant false fears in their heads or all the way through to flight with the children. There could also be a remote risk of altruistic suicide.

4. The father, Mr Hobbes informs the Court that the children are implacably opposed to any contact with their mother.

5. It is the mother’s case that the father has alienated the children from her. She refers to interviews conducted between her son M and a Court expert following the parties’ separation where M clearly indicated a preference to be living with his mother. M’s view is now said by the father to be oppositional to any contact with the mother.

6. On or about September 2009 there was contact between the mother and the children which was accidental or incidental. The mother claims to have been passing the children’s school and to have seen the children on the footpath. She stopped the vehicle in which she was travelling and attempted to speak to the children. Amongst other interactions there was alleged to be a physical interaction between M and the mother where the mother alleged M had assaulted her.

7. Following that incident the father sought and obtained, an apprehended violence order from the Local Court for the purpose of restraining the mother having any contact with the children.

8. In the early part of the separation of the parties there was a traumatic incident involving the children. That incident was the removal of the children from the mother whilst they were at an inner Sydney city hotel fleeing from the father. The mother has made claims about the propriety of that action and in particular the circumstances in which the Court granted an order ex parte against her.

9. I am in the process of considering whether, as a preliminary issue, the mother should be permitted to commence a new action seeking parenting orders in respect of the children. The children are now aged 18, 14 and 8 ½. Any view of the circumstances of the children since their parents’ separation must lead to a conclusion that the children have suffered immensely as a consequence of their parents’ conflict.

10. The mother has pursued and apparently continues to pursue action by the NSW Police to have the father charged with serious criminal offences arising out of his former employment. At the point of separation the mother removed from the former matrimonial home the father’s laptop computer and has provided that to Police. That event occurred a number of years ago now and no action has been taken by Police against the father which has been reported to the Court.

11. I consider that the first course of action to be taken, at this time, is to seek a report from a family consultant in relation to the children’s current emotional state and any wishes and perceptions they might have about future contact with their mother. The views of the children should be sought in the absence of the mother and the father.

12. I also discussed with the parties, when the matter was last before me, the appointment of an Independent Children's Lawyer. The father submitted that if the Court was to appoint an Independent Children's Lawyer, to which he would not be opposed, then consideration should be given to appointing Mr Graham Hearle, solicitor. The father submits that Mr Hearle has acted for the children in the past and they appear to have confidence in him. The mother is opposed to that appointment as she considers his view of her is tainted.

13. I propose at this time to order a report be prepared by a family consultant.

14. I note that in relation to the proposal to order a family report the father informed me that M was seeking an opportunity to speak to me directly in relation to this matter. I am satisfied that the children would not be unduly concerned by having to meet with a family consultant at this time for the purposes of obtaining their views.          

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate: 

Date:  14 March 2011