Harlow and Astin (No. 2)

FAMILY COURT OF AUSTRALIA

HARLOW & ASTIN (NO. 2)

[2008] FamCA 913

FAMILY LAW – CHILDREN—Best interests—child hearing impaired—whether orders suspending Mother’s time should continue—whether child wants to do speech and drama—school principal alleges Mother forced child to withdraw from speech and drama—where Mother refusing to renew child’s passport—Interim orders made supervised contact reinstated due to veracity of allegations—liberty to obtain detailed statements from Principal and staff—passport to issue

APPLICANT:

Mr Harlow

RESPONDENT:

Ms Astin

FILE NUMBER:

BRC

5262

2008

DATE DELIVERED:

15 September 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

15 September 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Waller, solicitor of Carne Reidy Herd appeared for the Applicant Father

SOLICITOR FOR THE RESPONDENT:

Respondent Mother appeared on her own behalf

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

The Mother is to spend supervised time with the child, … born … March 1998 for two hours every Sunday, or such other times as the parties may agree in writing, at the Gold Coast Contact Centre.

IT IS ORDERED THAT:

The Father is at liberty to obtain more detailed statements from the Principal and Mrs K who attended the meeting on 19 May 2008 at H School or any other member of staff who had dealings with the Mother in relation to the child’s attendance at speech and drama classes.
Leave is given to the Father’s legal representatives to allow the Principal and witnesses to view the Mother’s version of events as set out in her affidavit and annexures filed on today’s date.
A passport issue for the child forthwith pursuant to section 11 of the Australian Passports Act 2005 for the purpose of allowing the Father to travel with the child to New Zealand for the forthcoming September school holidays.
A Registrar of the Court be authorised forthwith to sign the application for the renewal of the passport in substitution of the Mother’s consent.
The matter be adjourned to 10.00 am on 26 November 2008 at the Brisbane Registry of the Family Court of Australia.
Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC5262 of 2008

MR HARLOW

Applicant

And

MS ASTIN

Respondent

REASONS FOR JUDGMENT

I am asked to make decisions on an interim basis concerning the parties’ child, who was born in March of 1998. The child is 10 years of age. For eight years of her life her parents have been litigating over her welfare. I use the word "welfare" loosely in the context. Clearly, such ongoing disputation causes great harm to a child and that is reflected in the statements the child has made to various people, including a statement to one of the wife's proposed witnesses on today's date, Ms T.
The child is hearing impaired. That is significant in the context of the issues that I am asked to consider. The primary issue I have to consider is whether the consent orders of June 2006 should continue whereby the mother has unsupervised time with the child or whether the temporary orders that I put in place in July this year suspending the mother's time with the child should continue or whether some third option should be considered.
A subsidiary question, but a critical one, is whether the child wants to do speech and drama. In broad terms the father says yes, the mother says no. The mother says the child complains that doing two lots of speech and drama sessions per week is too demanding. The father counters by saying, the child's teacher is Ms S, there has obviously been conflict between Ms S and the mother over some time and Ms S submitted a letter detailing her complaints about the mother's conduct. That was when she was an independent teacher, she is now coincidentally employed at H School, a private school in the Gold Coast area.
Today is an abbreviated hearing on an interim basis. I do not take oral evidence, I do not have the benefits of hearing cross-examination. It is very difficult at the best of times to be able to make positive findings. On today's date all I can do is make the decision which I regard as least detrimental.
Without the benefit of cross-examination I would have to say that the corroborative evidence would tend to favour the father's version of events. For example, the father points to the fact - and I am clearly aware of it from previous hearings - that the child obtained a Distinction, I think a High Distinction, for her grade 2 Trinity College exams. Certainly you do not fake those results and I would be staggered if the child was unhappy doing speech and drama if she was obtaining such outstanding marks.
However, the child wrote a letter. The letter is undated but it is UD12 annexed to the mother's affidavit which I gave leave to file on today's date. The letter is addressed to her father:
"Dear Dad, This is what I do every week. Tuesday speech drama, Wednesday morning touch footy training, Thursday drama club, Friday touch footy training, Saturday touch footy game. However, there is one thing I do not want to do and that is on the list, speech drama on Tuesday, the reason I don't"
and then it is badly photocopied.
"It also does, I think, put pressure on me.
Anyway, the child's writing is certainly, I would have thought at page 2, a deterioration of her other writing, which is exampled in other documents annexed to the mother's affidavit, but that is by the by.
The material that was before me before the mother produced this letter is contained in annexures 13 and 14 to the father's affidavit filed in support of his initiating application on 11 June this year.
On 16 May 2008 there is a report of a phone call made by the mother

re: complaints about Ms S, speech and drama teacher, who teaches the Tuesday classes:
"[The child] not to have any further contact with Ms [S] following her lesson yesterday. Ms [S] has written a very bad report which has affected the child's health."
I am not aware of any such report.
"[The mother] will arrange a Court Order if contact continues between Ms [S] and [the child].”
I just pause there for a moment. There were consent orders entered into between the parties back on 26 June 2006 in the middle of a detailed trial. The standard expert evidence before the Court was high, the level of legal representation was sound and the parties agreed:
"The father will be responsible for [the child’s] long-term care, welfare and development, including issues relating to her education, major health issues and religion."
Paragraph 12 of the same orders:
"The mother is restrained from reporting any concerns about [the child’s] welfare with respect to the father and the father's partner and his parents' care and supervision or from requesting any other person to do so on her behalf without first obtaining the leave of the Court to do so."
It appears that the mother was making complaints to the Anglican Commission or whatever body is responsible for administering the school. In any event, the mother is threatening a Court order, clearly on an educational issue, about the child and Ms S.
The mother claims that the child has written a letter to her father asking if she could live with her mother. Certainly that is inconsistent with reports of the contact centre's records and other information that is before the Court. The mother would like to keep her complaints low key.
SH14 is a letter of 26 May 2008 from the Head of School. The letter is addressed:
"To Whom It May Concern, At a meeting held on Monday, 19 May 2008 between the writer Mr [Y], Head of School, Mrs [K], Head of Junior School and [the father] and his daughter, [the child], it was disclosed by [the child] that her mother had held her down on the ground with some force until she was willing to write a letter for her mother declaring that [the child] wanted to stop lessons in speech and drama and did not want to attend the […] Literature Festival in September.
It was clear from what was said by [the child] that she did not want to write such a letter, but that she felt intimidated by her mother to produce the letter. She indicated that she had no sleep that night as she was concerned about what had happened during this incident.
[The child] appears to have a very close and emotionally supportive relationship with her father and the interview was relaxed and open in tone and nature."
My concerns about the report of the school principal were such that I made orders on an interim basis in July suspending the mother's time with the child. The mother now says that the contents of the letter from Mr Y, the Head of School, are completely incorrect, that there was no such incident and I am not sure whether she is suggesting that the child has made it all up or whether they have made it up, but she says she certainly wants to challenge the evidence of Mr Y.
In this context during the course of submissions I was referred to the evidence of Dr V, who is a psychiatrist in private practice in Brisbane. He has been a graduate of medicine for almost 40 years, he is an Associate Professor of Psychiatry and he is a psychiatrist who is held in high regard.
Dr V’s methodology when preparing his reports is to interview the parties and then to write his report and then he reads the associated documentation. So it cannot for one moment be suggested that he has had his opinions contaminated by allegations in the various affidavits or other material that may be provided to him.
He had seen both parties. Of the mother he says at page 13 of his report:
"It seems to me that [the mother] has a personality disorder. Personality disorder of itself does not necessarily impact on [the mother’s] capacity to be a residential parent or a contact parent, except insofar as she seeks a highly enmeshed relationship with the child to the exclusion of significant others. This is a situation that is not ideal for optimal development of the child. However, the problem that arises is that in her desire to achieve such a relationship with the child she has behaved in ways that have been to her detriment in a self-defeating manner and moreover exposed the child to emotional abuse.
The principal question is the extent to which, if the mother were to be a contact parent, that she would seek to undermine the child's relationship with the father by making false allegations against the father and moreover coaching the child to do so, which would be most harmful to the child's development."
This report is over three years old. If the father's version of events as corroborated by Mr Y be correct Dr V was being astonishingly prescient.
At page 14 of his report he says:
"While it may be possible for the Court to extract an undertaking from the mother - that is, she will not take the child to any authorities making complaints about the father, et cetera - what would be more difficult to enforce would be an absolute requirement that the mother does not tell the child that she wishes for the child to live with her and moreover encourage the child to make allegations against the father or his partner."
He concludes by saying:
"It would seem to me that the mother needs to accept that the child will not return to her care as a residential parent. She is only likely to modify her behaviour if she accepts this state of affairs."
I have read the contact centre reports to which I was referred. They relate to supervised contact in a period from 2004 to 2006. There is something of a recurring theme by the child confiding in contact centre staff that she is afraid to tell her mother certain things and she wants her time with the mother to be limited.
If the child be correct in what she has told the school principal and the other at the meeting on 19 May, it is totally inconsistent with the contents of her handwritten note addressed to her father written whilst in her mother's care. The allegations contained in the school principal's letter are consistent with the type of conduct one might expect after reading Dr V’s report.
The mother relies on two character witnesses who have patiently sat through the Court proceedings today. She sought leave to call them as witnesses. For reasons I gave I ruled I would not allow that course to be taken. The Reverend U has provided a letter of 29 August 2008. Reverend U sets out in his document a version of events that could only come from the mother. There is no attempt to seek a neutral, objective account or the version of the other side. For example, at page 2 of the letter:
"After about six years [the mother] met [the father], another student, unemployed, for whom she began to care. He seemed to be strong and assertive. The couple began living together and as time passed this man [the father] became controlling and domineering."
It is the mother's version. Reverend U’s account can be no better than the accuracy and reliability of the mother's version and the mother's version has been highly discredited by significant corroborative evidence and expert assessments.
Reverend U then goes on to form an opinion that the mother was suffering from a sense of shame. Her shame was compounded by two unsatisfactory relationships and the loss of ability to be a mother to her daughter. It may be a view of the facts, maybe he is perfectly correct, but I do not have Reverend U’s qualifications, I do have expert assessment from psychologists, psychiatrists and social workers and at this point in time I prefer to rely on that evidence.
I have had regard to the report from Ms G and in that report she reports positively of the mother's interaction with her daughter. It has never been an issue in this Court that so far as parenting goes the mother is able to react with her daughter in a very satisfactory way, care for her materially and interact with her. The Court expresses relates to the ongoing allegations that the mother attempts to criticise the father, criticise those she has come into conflict with, such as the speech and drama teacher, Ms S.
Ms T details how she was asked to effect service - I assume it was the contravention applications, this was earlier this year, around January or February - and she speaks adversely of the clash she had with the father at that point in time. I am informed that whilst Ms T lived with the mother some time ago apparently she has renewed living with her. I had canvassed the possibility of her being a supervisor to avoid the necessity and the expense and the stress of a contact centre. Where she has made allegations against the father it must impact on her ability to be an independent supervisor who has taken a totally neutral stance in this matter.
As I have observed in the course of submissions that I am sufficiently concerned about the veracity of the allegations that regrettably and unfortunately I need to reinstate supervised contact.
RECORDED : NOT TRANSCRIBED
ORDER DELIVERED
I propose to adjourn this matter to 26 November, that is the earliest I can accommodate it, that will be at 10 am. You are at liberty to obtain more detailed statements from the principal and others at the meeting on 19 May. You are given leave to allow the witnesses to view the mother's version of events as set out in her affidavit and annexures filed on today's date.
I turn to the issue of passports. The consent orders of June of 2006 were in the following terms:
"15.That in the event the father wishes to holiday with the child overseas the father will provide one month's written notice to the mother of the date of departure and return and that the child's passport currently held by the Court be released to the father and the mother to receive a make-up weekend if necessary."
It is fundamental to a consent order in those terms if the father is to holiday overseas that the child have a valid passport. The order is a nonsense otherwise. It is, to use the Latin expression, sine qua non - without which nothing.
The child's passport expired on 1 September. The father has filed an application on 2 September. He has filed an affidavit in support of that application. I have had regard to the terms of that affidavit. He has written to the mother asking her to renew the child's passport. The mother is refusing to do so and she is refusing to do so based on an unfiled affidavit of the father which is SH14 of that affidavit of the father which- - -
RECORDED : NOT TRANSCRIBED
Yes, it has been sworn on 5 July 2007. There is a letter from Carne Reidy Herd, the father's solicitors, to him of 24 April '07 in which advice is given. For my own part there are consent orders providing for the father to take the child overseas. The Court has never been asked to change those consent orders. I have no doubt whatsoever that the father would return to Australia with the child. His partner is here, his business is here, he has lived in Australia all of his life. To my mind the refusal of the mother, for the reasons she purports to give, not to renew the child's passport verges on the bloody-minded.
ORDER DELIVERED
RECORDED : NOT TRANSCRIBED
I ask that the orders be expedited.
RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate:

Date: 15 September 2008

[2008] FamCA 913

15 September 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Costs

Injunction

Procedural Fairness