HARLOW & ASTIN
[2010] FamCA 391
•11 May 2010 Addendum 19 May 2010
FAMILY COURT OF AUSTRALIA
| HARLOW & ASTIN | [2010] FamCA 391 |
| FAMILY LAW – CHILDREN - Parenting issues previously determined – Child to reside with Father – Father seeks order ceasing all communication between Mother and daughter – Mother has had supervised time at Contact Centre for four years out of past six years – Whether best interests of child met by continuation of visits at Contact Centre |
| APPLICANT: | Mr Harlow |
| RESPONDENT: | Ms Astin |
| FILE NUMBER: | BRC | 5262 | of | 2008 |
| DATE DELIVERED: | 11 May 2010 Addendum 19 May 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Barry J |
| HEARING DATE: | 27 August 2009, 28 August 2009 and 9 October 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Carmody of Counsel appeared for the Applicant Father |
| SOLICITOR FOR THE APPLICANT: | Carne Reidy Herd |
| SOLICITOR FOR THE RESPONDENT: | The Respondent Mother appeared on her own behalf |
Draft proposed orders
The child, … born … March 1998, reside with the Father.
The Father have sole responsibility for all decisions involving the care, welfare and development of the child.
Pursuant to s 65L a Family Consultant attached to the Brisbane Registry of the Family Court is requested to consult with the child and explain to her the Orders made by the Court today and the reasons for same.
The Mother spend no time with the child save at the specific request of the child with any such time to be supervised at a Contact Centre or supervised in such other form as the parties may agree in writing.
The child be at liberty to communicate with the Mother by email, by post or by phone at any time the child wishes to do so.
The Mother be at liberty to respond to any email or letter sent by the child.
The Father is at liberty to peruse any mail or email addressed by the Mother to the child prior to the child’s receipt of same and may in his discretion if he considers the terms of the communication to be inappropriate determine the communication should not be given to the child but be returned to the Mother.
The Mother is not to phone the child at any time either on her mobile phone or any landline.
In the event the child expresses a wish to see her mother either on a periodic basis or for a single visit the Father is to communicate with the X Contact Centre with a view to arranging such visit to occur at such Centre or to be otherwise supervised in such manner as the parties may agree in writing.
The Father is to notify the Mother in writing of any medical treatment the child may require from time to time with details of the nature of the treatment and the medical practitioner providing same.
The Mother is authorised to request any school the child may attend for copies of the child’s term school reports.
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: BRC5262/2008
| MR HARLOW |
Applicant
And
| MS ASTIN |
Respondent
REASONS FOR JUDGMENT
Background to the Dispute
The current application before the Court seeks to revisit parenting orders for the child, a daughter born in March 1998.
The parties to the dispute are the Applicant Mother, born in 1963, and the Respondent Father, born in 1960.
The parties met in Queensland about April 1996, and separated initially in mid-1997. There is some dispute as to whether the parties separated prior to or after learning about the Mother’s pregnancy, but it is clear that they subsequently continued the relationship in one form or another until September 2000 when the Mother finally moved out of the Father’s home.
During that time they had periods of separation and several relocations, but suffice it to say the relationship was certainly over by September 2000.
Background to the Litigation
To say this is a matter with a lengthy history of litigation is something of an understatement. The first application was lodged by the Father on 9 November 2000, more than nine years ago. It has had three final hearings (including the present determination), numerous interim hearings, contravention applications and an appeal to the Full Court since that time. I note the subject child, now aged 12, has been the subject of litigation since she was two years old.
2002 Trial
The first trial was heard over a period of eight days by Monteith J in 2002. His Honour’s decision was delivered on 10 February 2003 at which time it was ordered that the child live with the Father and spend alternate weekends with the Mother.
Several points raised by Monteith J may be considered particularly salient to the current application. In relation to the willingness of the parents to promote a meaningful relationship, his Honour observed at paragraph 71(c):
“On the evidence before me, I find that the shared care arrangement failed to work primarily because of the difficulties created by the mother. If I were to place the child primarily in the care of the mother, I do not believe she would foster the child’s relationship with the father, or with her paternal grandparents. In fact, I believe that the mother would attempt to frustrate the child’s relationship with her father and her paternal grandparents. On the other hand, if I place the child in the care of the father, I am of the opinion that he will promote the child’s relationship with the mother, and with his parents. He has, in my opinion, demonstrated time and time again, his commitment to a shared care arrangement. I accept his evidence that he wanted that arrangement to work. In my opinion, he recognises the desirability of the child having the benefit of two parents.”
In ultimately ordering that the child live with the Father, his Honour held (at paragraph 71(k)):
“As a shared care order did not work, it is necessary to make an order for residence in favour of one of the parents. Whether this leads to further proceedings, I am unable to predict.”
These orders were amended on 24 March 2003, however the key provisions remained unaltered.
From 2003 until 2006
On 14 November 2003 a further application was brought by the Father summarily seeking orders restraining the Mother from contacting the Department of Families alleging abuse of the child by the Father and restraining the Mother from taking the child to medical professionals without the written consent of the Father. The Father also sought an order giving him sole parental responsibility as well as some changes to holiday time.
The matter was before Registrar Spelleken on 5 January 2004 when interim orders were made in the terms sought by the Father, largely by consent. An Independent Children’s Lawyer was appointed at that time.
The matter was before Registrar Spelleken again on 26 May 2004 when an order was made that the Mother have supervised time with the child. This supervision order continued to be operative until June 2006.
2006 Trial
The second trial was set down for three days before myself from 26 June 2006.
The matter settled by consent on the second day of the hearing. The Mother was represented by Mr Curran of Counsel, the Father by Ms Carmody of Counsel, and the Independent Children’s Lawyer by Mr Drysdale of Counsel.
The terms of the consent orders were that the child was to live with the Father and have increasing unsupervised time with the Mother. The end point of the increasing regime involved the child spending from after school Friday to before school Monday each alternate weekend with the Mother, as well as a Thursday night in the alternate week. It was agreed that the Father have sole parental responsibility for the child, provided that he kept the Mother informed of his decisions.
As is my usual practice, before making the consent orders I spoke directly to the parties to ensure each understood the orders and was prepared to consent of his or her own free will. In speaking to the Mother, I also enquired as to her belief about the allegations she had made against the Father (per the transcript of 27 June 2006 at page 1):
“His Honour: …Do you accept that you have made serious allegations involving the father’s mistreatment of this child over the years?
[The mother]: Yes, your Honour.
His Honour: Do you accept unreservedly that there is no validity in those allegations?
[The mother]: Yes, your Honour.
His Honour: Have you ever apologised to the father for what you have done?
[The mother]: Not directly, your Honour.
His Honour: See - - -
[The mother]: I apologise to the father now.
His Honour: Mm?
[The mother]: I apologise to the father now for – for that.”
2007 Contraventions
Post the 2006 hearing a number of applications for contravention were brought by the Mother. These applications were filed 11 April 2007, 22 June 2007 and 1 October 2007.
The contravention applications came before Judicial Registrar Smith on 9 July 2007. At that time leave was granted for the Mother to withdraw the contraventions filed in April, and listed the June 2007 contraventions together with any further applications in a case, before me in October 2007.
The outstanding applications were heard by me on 24 October 2007. By that time the Mother had filed the contravention application dated 1 October 2007. I also dealt with an application in a case filed by the Mother on 25 July 2007 that sought to reopen the children’s issues.
The number of alleged contraventions from the June and October 2007 applications totalled 33. I required that the Mother choose her best 10 contraventions to prosecute on the day. She elected to proceed with nine.
At that time the Mother contended that she entered into the consent orders in 2006 under duress. I rejected that assertion given I had confirmed with her before making the orders that she entered into them of her own free will.
I dismissed all of the nine contraventions either on the basis that there was no breach or if there was, that the Father had a reasonable excuse. The remaining contraventions were also dismissed at that time.
I also dismissed the application to re-litigate the children’s issues, filed by the Mother on 25 July 2007. The orders of 26 June 2006 required the parties to seek the leave of the court to make such an application.
On hearing the application I considered that the test enunciated in Rice v Asplund had not been satisfied. The Mother had argued that there were changed circumstances in that the Father had chosen to home school the child and was continually contravening orders. I found that, given the contraventions were all dismissed, there was no significant change in circumstances that merited the re-opening of the children’s issues.
The Appeal to the Full Court
The Mother appealed my decision handed down 24 October 2007. The Full Court, (Finn, Warnick and Murphy JJ), in its reasons dated 16 May 2008, noted that they were unable to discern from the Mother’s written submissions any grounds of appeal.
The appeal was dismissed in whole, with costs being awarded to the Father. It was held, there was no misunderstanding of the issues in terms of the application of the Rice v Asplund principle, nor in addressing the Mother’s complaint about duress in signing the consent orders in 2006.
2009 Trial
The matter was reopened in 2008 when the Father filed an initiating application for final orders on 16 July 2008 seeking orders that the Mother’s time with the child be suspended. For reasons given at the time I made such orders on an
ex-parte basis and adjourned the proceedings for a brief period of time to allow the Mother to be heard. At a subsequent hearing I ordered that until further order the Mother’s time with her daughter be supervised at a Contact Centre.
The matter then proceeded under the Less Adversarial Trial process. In February 2009 trial dates were fixed for 27 and 28 August 2009. On 18 August 2009 the Mother forwarded a letter to the Registrar requesting an Independent Children’s Lawyer be appointed and an adjournment of the trial dates until that was done. I then heard the application on 20 August 2009 and dismissed the application for adjournment.
I formed the view that the Court would not be assisted by the appointment of an Independent Children’s Lawyer nor would it be in the child’s best interests to postpone the trial. There had been numerous reports prepared over the period of the litigation. I formed the view the child’s interests would not be served by further involvement in the litigation process which would be the inevitable result of the appointment of an Independent Children’s Lawyer. In addition such appointment had been previously rejected and the Mother’s application was brought too late.
Consequently the matter proceeded to hearing over two days on 27 August 2009 and 28 August 2009, at which time judgment was reserved. The Father was represented by Counsel. The Mother was not legally represented.
The Mother wrote a letter to the Court on 31 August making dramatic allegations about events at the most recent time she spent with the child at the Contact Centre. In view of the contents of the email I decided to reopen the evidence. I directed the Registrar to issue a subpoena to the Contact Centre for its latest records. The records were received and perused and leave given to the parties to peruse same. The matter was further mentioned on 9 October 2009 at which time a decision was once again reserved.
Orders Sought by the Parties
The orders sought by the Mother are outlined in her “Minutes of Orders Sought” document filed 26 August 2009. She summarily seeks that the previous orders be discharged and that the child live with her and spend supervised time at a Contact Centre with the Father. She also seeks that she have sole parental responsibility for the child.
In addition, the Mother sought a number of injunctions against the Father, including the Father being restrained from:
§ family violence;
§ contacting people associated with the Mother;
§ causing the school to produce documents for court cases;
§ approaching the Mother’s residence or work;
§ approaching the school to engage the child in any office interviews;
§ questioning and scrutinizing the child during contact;
§ approaching service providers of the Mother or child;
§ removing the child from the Mother’s care (including interstate and overseas);
§ contacting authorities to allege abuse by the Mother;
§ coming into physical contact or sighting the Mother at all; and
§ denigrating the Mother.
The Mother further sought a number of incidental orders that I need not consider in detail here.
The Father sought, in his initiating application field 16 July 2008, orders in the following terms:
“1.That the child, […] born […] March 1998 live with the Father;
2.That the Father have sole parental responsibility for the child;
3.That the Mother does not communicate with nor spend time with the child.”
He continued to seek orders in these terms at the trial.
Trial – Family Court Brisbane 27 August 2009 to 28 August 2009
Witnesses for the Father:
· the Father himself;
· Mr Y, Principal of H School;
· Ms K, Head of the Junior School, H School;
· Dr V, psychiatrist (by telephone link from Melbourne).
The triggering event for the Father’s application in mid-2008 to cease the Mother’s time with the child arose from complaints by the child her mother had pinned her down on the floor until she agreed to write a letter to the effect she no longer wished to do speech and drama at the school. The child’s account to her father is corroborated by the school Principal, Mr Y, and the Head of the Junior School, Ms K.
To his affidavit filed 14 November 2008 Mr Y annexes a phone record of complaints made by the Mother to the Anglican School’s Office which was then in turn passed on to the staff at H School. The phone record is in the following terms:
“Report on phone call from [DN], PA to [Ms SH], Anglican School’s Office regarding a complaint from Ms [Astin], mother of [the child] Year 5L re: Ms [S], Speech and Drama Teacher
·[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;
·[the mother] will arrange a court order if contact continues between Ms [S] and [the child];
·[the mother] claims that [the child] has a few health issues (mentioned scirosis (sic)) and does not need the additional stress of Ms [S];
·[the mother] claims that [the child] has written a letter to her father asking if she could live with her mother;
·[the mother] commented that she is happy with [the child’s] teacher and the JS Administration Staff;
·[the mother] would like the arrangements with [the child’s] hearing aid to be changed so that she can avoid contact with her father’s family (grandmother). Currently the family brings the hearing aid in every day. [The mother] would like the hearing aid to be left at the school;
·[the mother] would like to keep her complaints low key;
·[DN] advised that she would pass the information to the Head of School, Mr [Y];
·[the mother] has never met the Head of School.”
At paragraphs 15, 16 and 17 of his affidavit Mr Y deposes:
“15.I asked [the child] as to whether she wanted to continue these drama lessons. [The child’s] answer left me in no doubt that she wanted to continue the lessons. [The child] also left me in no doubt that she loved participating in speech and drama and held a great sense of satisfaction and pride in her achievements in speech and drama. I was certain after hearing [the child] that she was committed to continuing such achievement.
16.[The child] then told us that her mother had held her down by the shoulders and would not let her up until she wrote a letter stating that she did not want to go to the […] Literature Festival in September nor attend any more lessons with [Ms S]. [The child] told us that she was crying when she wrote the letter as she did not want to write such letter. [The child] also told us that she did not get any sleep that night, because she was too upset at what she had been forced to do.
17.I recall that Ms [K] expressed some surprise as to what
[the child] told us. With that, [the child] hopped off the couch and confirmed what she had told us by way of a physical demonstration.”There was evidence of the Mother having a falling out with Ms S in about October 2006 as a result of which Ms S refused to allow the Mother to attend any speech and drama lessons. Ms S was giving lessons in a private capacity and not through the school at that point in time (refer Father’s affidavit filed 12 June 2009 paragraphs 18 to 33). The Mother’s inappropriate behaviour on that occasion occurred within four months of the June consent orders and was in conflict with assurances she had given to co-operate in assisting attendance at the child’s extra circular activities.
Ms K, the Head of the Junior School corroborates in her affidavit filed on the same date (14 November 2008) Mr Y’s evidence as to the above events.
I have no hesitation in accepting the evidence of Mr Y and Ms K. They are experienced school administrators. They have endeavoured as far as possible to take a neutral stance in the ongoing dispute between the parents. They are intelligent, independent, honest witnesses whose account of events is corroborated in a significant number of ways.
The events involving the school which I have described as the triggering event was only the last straw in a long line of incidents which had continued unabated since shortly after the making of the consent orders in June 2006. The Father in his trial affidavit details conduct of the Mother which could only be described as not being in the best interests of the child and putting her own interests ahead of those of the child.
Evidence of Dr V
Dr V provided a report in 2005 which was before the Court in the 2006 proceedings. Dr V was not asked to provide an updated report for the current proceedings but was provided with the Mother’s affidavit material as well as a letter written by the Mother. To better understand the oral evidence he gave the Court it is necessary to refer in some detail to the observations and opinions expressed in the 2005 report. In his report dated 23 September 2005 at page 6 it is noted:
“I asked [the mother] as to her understanding as to how the situation has arisen where as mother of a child she has very limited and only supervised contact with her daughter. She gave me a long account of how her problems were due to legal injustices, personalities, capitalism, the legal industry and victimisation of herself.”
At page 7 of the report Dr V records:
“She says that [Mr N] did a report in December 2000 and as a result of his report the orders were changed to a 50/50 shared care. This was, “because of [Mr N]” and she states that his report was, “privately commissioned” by the father and that, “he took notes” from the father. “This report has been used over and over again against me”. She states that, “once the 50/50 arrangement was put in place it was never working”. “He would not negotiate and we would not talk to each other”. The relationship was not amicable. She blames the current predicament on the original report of Mr [N].”
Under the heading, “Diagnostic Issues (Provisional)” (paragraph 11) Dr V opines:
“With respect to the father, [Mr Harlow], he presents as having some obsessional traits and also as a fairly controlled individual and it is possible that he is also controlling but further data is required. All the same his personality would seem to fall in the normal range with several personality strengths.
With respect to the mother, [Ms Astin], it would seem that there is “a disorder of personality” which could be characterised as having histrionic, narcissistic and perhaps some paranoid traits. She tends to dramatise issues and has difficulty seeing things from any perspective other than her own. This has led to a situation where she is unable to take any responsibility for the awful predicament she is in with respect to contact with her child, a situation she deals with by externalising issues with excessive use of projection.
It seems to me that underlying her psychological difficulties is a problem of self esteem and self worth, such that the only way she can value herself as a mother is to paint the father in an extremely bad light. Her behaviour is self-defeating with a tendency to repetition, compulsion, despite negative consequences for her.”
Under the heading, “Conclusions” Dr V observed at page 12:
“To reiterate the principal issue is a significant disorder of personality in the mother which is of an extent that has significantly impacted on her care of the child and her behaviour with respect to post-separation issues. The situation is quite tragic in that [the mother] has only limited insight into how self-defeating she has been in her aim of having an on-going meaningful relationship with her child.
In responding to written questions from the Independent Children’s Lawyer (page 13):
“Question:Whether either parent presents as suffering from a psychiatric illness or a personality disorder.
Answer:It seems to me that [the mother] has a personality disorder.
Question:If so, whether in your opinion the illness or disorder would impact upon that parent’s ability to be either a resident or contact parent as the case may be for the child.
Answer:The 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.”
Dr V’s methodology is to give a provisional diagnosis and to then read the material that has been forwarded to him and having read that to draw his conclusion.
Under the heading, “Recommendations” in his report he notes:
“It seems to me that the current contact the child and the mother have must be quite unsatisfactory for both.”
The contact to which Dr V refers was for a limited time period at a Contact Centre pursuant to the orders of Registrar Spelleken.
Dr V concludes his report by noting:
“It would seem to me that the mother needs to accept that the child will not return to her care as the residential parent. She is only likely to modify her behaviour if she accepts this state of affairs.”
In the course of his oral evidence at the hearing in August 2009, Dr V adverted to the fact that he had seen a recent affidavit of the Mother together with a letter she had written. He ventured the opinion that nothing appears to have changed in relation to the Mother making accusations and:
“What was predicted has eventuated.”
I accept the diagnosis made by Dr V. I accept his observations as to the motivation for the Mother’s behaviour. I accept his conclusions in the giving of his oral evidence.
Mother’s Case
Witnesses for the Mother – Reverend U, Dr A, Dr L (not available to be called)
The Mother indicated in the list of affidavits to be relied on by her that in addition to relying on numerous affidavits filed by herself she wished to rely on an affidavit filed by Ms T on 26 November 2008, an affidavit filed by Dr A on 3 July 2009 and an affidavit filed by the Reverend U on 3 July 2009, both of these affidavits were actually filed on 18 June 2009 with the Court return date being 3 July 2009 but nothing of significance turns on that.
Before turning to a consideration of the Mother’s evidence I shall briefly make comment on the witnesses she did call.
Reverend U
Reverend U is a clergyman/counsellor in LC Organisation. To his affidavit he simply annexes a letter that he addressed to, “To whom it may concern” of 29 August 2008. I find little of relevance in the history recited by the witness about the Mother’s upbringing - being largely an account based on what the Mother had apparently told him. At page 3 of his letter he observes:
“Over two months of intense counselling and through attending “self help groups” through gaining new insights into the content of her nursing studies [the mother] has made remarkable changes in her life and outlook. She has gained in confidence and self esteem and has ventured to care for herself in purchasing a home unit to provide more security for [the child].
I have visited [the mother’s] home when [the child] has been present and I have observed a warm loving relationship between mother and daughter. [The mother] has constantly expressed her desire to be able to encourage [the child] to make choices, and increasingly make her own, age appropriate, personal decisions as she develops towards young adulthood.”
The fact that the Mother may on occasions in the past appear to have a warm loving relationship with the child and to encourage her daughter to make choices, does not negate the fact that there is an abundance of reliable evidence she has on numerous occasions denigrated the Father to the child, obstructed the child’s extra-curricular activities, interfered with the child’s health issues and engaged in conduct towards the child that constitutes physical and emotional abuse (refer Father’s affidavit filed 12 June 2009, in particular paragraphs 86, 94 and 98).
Generally speaking I found Reverend U to be something of an apologist for the Mother and to not have adequate insight into the other side of the story.
Dr A
Dr A annexes a report to his affidavit of 18 June dated 18 February 2009. I do not find the report of Dr A to be helpful. I would go so far as to indicate I intend to place no reliance upon it whatsoever. He has not interviewed the Father or the child. He has seemingly taken the Mother’s account of events at face value – always a risky option in litigation. He has not demonstrated appropriate qualifications to allow him to critique the reports of the psychiatrist, Dr V. Other reports that he purports to critique are (set out in paragraph 6 of annexure H to his affidavit):
·Mr N dated 29 December 2000;
·Dr CN dated 26 January 2001;
·Ms E, social worker, dated 10 April 2002 and 31 May 2002;
·Mr B, social worker, dated 20 January 2005;
·Mr M, social worker, dated 20 May 2004;
·Dr L, psychiatrist, dated 15 February 2005;
·Dr V dated 23 September 2005;
·response affidavit of the Mother dated 26 November 2008.
All of the reports, other than the Mother’s affidavit, are of historical interest only as they have been superseded either by the orders of Monteith J in 2003 or the consent orders of 2006.
Neither of the report writers called by the Mother have adopted the methodology required for report writers in this jurisdiction.
Other Witnesses of the Mother
The Mother indicated she intended to rely on an affidavit of Ms T who is a psychiatric registered nurse. Her affidavit was filed on 26 November 2008. She was unable to contact this witness by phone to have her come to Court to give evidence. In the circumstances I indicated I would not allow her to rely on the affidavit. The Mother also relied on three affidavits of Dr L, psychiatrist. He could not be contacted by phone to give evidence or be cross examined in the matter. I allowed his reports to stand but the value of the reports are lessened by the fact of his unavailability. I will advert to Dr L’s assessments later in these reasons.
The Mother relied on a number of lengthy affidavits by herself as detailed in her list of documents. The affidavits contained numerous annexures many of which had little or no relevance to the matters in issue. By way of example to the affidavit of 5 September 2008 she annexes a work reference letter from June 1989 and her school reports dating back to 1980. She annexed a lengthy affidavit of the Father as UD17.
Mother’s Affidavit of 18 June 2009
At paragraph 49 of this affidavit the Mother denies holding the child on the ground and thereafter forcing her to write the letter which the Father claims she was forced to write. Annexure 1 to this affidavit consists of handwritten notes of the child. I am not prepared to place any weight on these notes. The notes were written whilst the child was in the Mother’s care. I am more than satisfied on the evidence available that the Mother did act in the way described by the child to Mr Y and Ms K. The views expressed in annexure 1 are quite contrary to the views expressed by the child to other witnesses (including Ms C) that she wishes to remain in her father’s care.
At paragraph 55 of her affidavit the Mother deposes:
“55.[the child’s] future will be best served by change in where she lives, as she is comfortable and is able to communicate with me about things that she can’t with her father.
There is considerable evidence which would suggest this is not the case.
At paragraph 71 the Mother sets out reasons why the Father’s time with his daughter should be supervised:
“I would say supervised contact for the Father until [the child] is appropriately assessed by professionals to be safe and ready to have any more contact with her father, provided the Father attends extensive and ongoing psychological and psychiatric assessment and assistance to asset (sic) with his unhelpful behaviours towards [the child]. [The child] needs a break from the psychological abuse, manipulation from her father and the paternal families. The older women including the last de-facto of [the father] were able to get up and leave him, [the child] can’t and the impact of forcing her to stay in her father’s care is evident in her presentation at her father’s residence, in her school grades and her conditioned attitude and behaviours she articulates to others during her father’s care.”
There is no evidence from any psychiatrist that the Father is in need of, “ongoing psychological and psychiatric assessment and assistance”. Paragraph 71 would appear to be a textbook example of the “projection” to which
Dr V has made reference in his 2005 report.
At paragraph 82 of her affidavit the Mother says
“82.In relation to [Ms C’s] report annexed to the Father’s trial affidavit there has been no recent independent evidence filed in this Court regarding [the child’s] views. [Ms C’s] report is brief, and conflicts in many places. The Court should not rely on such a report which in one paragraph notes that she loves spending time with her mother, looking forward to holiday time, and in the next states that she does not want to see her mother.”
The Mother’s affidavit of 27 March simply annexes the report of Reverend U and Dr A.
Her affidavit of 15 September 2008 as noted has numerous annexures. I have considered the contents of this affidavit but do not intend to refer in any detail to same.
Credibility of the Parties
To her affidavit filed on 18 June 2009 the Mother annexes pages from the Father’s website.
He operates a professional business assisting organisations both nationally and internationally to better market themselves in addition to other services he is able to render. I find the Father is a well qualified highly intelligent individual who at all times has had the child’s best interests at heart. I agree with the assessment made by Monteith J more than seven years ago (quoted at paragraph 7 above):
“- - - He has, in my opinion, demonstrated time and time again, his commitment to a shared care arrangement. I accept his evidence that he wanted that arrangement to work. - - -“
The Father has been the recipient of provocative aggressive behaviour from the Mother coupled with allegations of serious misconduct. At all times the Father has acted with dignity and has responded in a measured way. I have no hesitation in accepting his account of events particularly in circumstances where it is in conflict with the Mother’s account.
The Mother’s behaviour has been inconsistent in so many instances. She admitted to Dr L her behaviour has constituted emotional abuse, yet at other times she denies this. I find I can place no reliance on the Mother’s evidence. By way of example she filed Notices of Child Abuse on 4 August 2008 and 11 February 2009.
The Notice of Child Abuse dated 4 August 2008 is in response to the allegations made against her as detailed in Mr Y’s affidavit. At paragraph 3 of the Notice of the Child Abuse she asserts:
“There has been gross misrepresentation of me and child was exposed to an extreme form of emotional abuse to a report writer, to the headmaster of the school and the head of the school and others.”
In Paragraph 9 the Mother states:
“In my opinion as a registered nurse the child was engaged in a number of processes to inflict a severe form of emotional abuse of the child and I request this child is removed from the Father today. In my opinion the Father’s manipulation, coaching and coercion of the child requires psychiatric assessment on a long term basis, as it was only early 2008 the Father’s de-facto had also left him. There is a possibility of the grandparents also engaged in brainwashing the child and perpetrating verbal abuse and violence on myself being the mother.”
The Mother’s allegations are in so many instances confirmatory of
Dr V’s diagnosis that she engages in projection. Her narcissism is evident in many ways but in particular the grandiose treatment she believes should be accorded to registered nurses in particular, psychiatric nurses.
Reports of Dr L
Dr L had sworn three affidavits filed 18 April 2005, 14 October 2005 and 6 June 2006 respectively. Each of these affidavits had been filed by the Mother. In the first of his reports Dr L delivers a recitation of facts which largely accord with the Mother’s version of events. At page 4 of the report Dr L observes:
“In relation to the conclusions of Mr [M] that [the mother] has fabricated allegations and coached [the child] to support her in these claims to the police, as well as the claim that [the child] had said that she wanted to live with her rather than her father, [the mother] vehemently denied coaching [the child]. She maintained that she could not harm her daughter by doing this and had always maintained that she should have a relationship with her father.”
Under the heading, “Discussion and Recommendations” in the final paragraph of the report Dr L observed:
“In terms of her capabilities as a mother, her love for her daughter, capacity to provide for her financially and to be available for her, I believe there are no reasons to believe that [the mother] would not be able to assume the role of primary care giver and successfully take over residency of [the child]. I believe that she would be well suited to undertake this role and from a psychiatric perspective there are no reasons why she should not be granted residency of her daughter.”
In the second report of the 10 October 2005 at paragraph 2 Dr L observes:
“During my consultations with [the mother] she has continued to describe her concerns about [the child] and her beliefs that the child has been physically abused by her father have remained unchanged. She has expressed the view that she is, “a victim of systems abuse”, and believes that the case against her was planned and pre-premeditated by the father when he was in Cairns. She expressed the view that [the father] has used third parties to alienate [the child] from her. She maintains that she has not done anything wrong and does not believe that she has ever coached [the child] to make allegations against her father. [The mother] maintains that she is not interested in trying to badmouth the father and says that [the child] needs to know that both her parents love her and want her to develop into a healthy individual.”
At page 2 of the report in the final paragraph Dr L notes:
“I agree with Dr [V’s] conclusions that [the mother’s] behaviour has been self-defeating, with a tendency to repetition, compulsion, despite negative consequences for her and that [the mother] has difficulty seeing things from any perspective other than her own or to have taken responsibility for her predicament. Nevertheless over the past few months [the mother] has managed to achieve greater insight into the fact that her behaviour has exposed [the child] to a form of emotional abuse and indicated a wish to avoid this in the future. Thus, on 29 September she stated, “I know taking her to the police and family services and even doctors is emotional abuse and I don’t want to emotionally abuse”. However, as Dr [V] notes, the central issue is to what extent [the mother] can modify her behaviour if directed by the Court. Whilst her belief that [the child] has been physically abused by her father is not delusional, this belief has the quality of an overvalued idea carrying with it very strong emotions. - - -”
In the final paragraph of the report Dr L notes:
“I believe that [the mother] has partial insight in the sense that she recognises that her behaviour has constituted emotional abuse of [the child] and contributed to her limited contact with the child. She shows a desire to change her behaviour and recognises that this is the only way in which she will obtain more contact with [the child]. I would recommend that [the mother] continue to undergo psychotherapy in order to maximise the changes of achieving a more satisfactory outcome for both herself and [the child].”
Events After Hearing on 28 August 2009
The Mother had time at the Contact Centre in accordance with the existing orders for two hours on Sunday 30 August 2009. On the 31 August 2009 she sent an email to the Court without copying in the Father’s legal representatives. In that email of 31 August 2009 she notes (third paragraph):
“In any case, I have also highlighted the events of the last contact at the Contact Centre, on 30 August, where the child began bleeding and was covered in blood in her undies and on her thighs, her first periods, and when I questioned her she had no knowledge of this and was not prepared. I think this needs to be taken into consideration, and the child’s difficulty in communicating these to her father. I gave her some quick skills training in the toilet but it is a very sad situation for the little girl going through the passage into womanhood at a Contact Centre and without her mother or any other female to support her at her father’s home.”
As a result of receiving this letter I directed a subpoena be issued by the Registrar to the Contact Centre to obtain the Contact Centre’s records of this visit. I note the nine pages of the Contact Centre’s notes contained in the file tendered on 9 October 2009 as exhibit 1. At page 4 it is recorded:
“[the child] needed to use the bathroom and [the mother] explained to her about taking care of herself and how to be hygienic at certain times of the month.”
On page 5:
“[the mother] showed enjoyment, smiling, chatting and sharing information about female issues. [Child] open and interested.”
Page 6:
“Encouraged [the child] to wash her hands and keep herself clean especially during periods.”
The more disturbing entry is page 9 of the report:
“[The child] expressed concerns about [the mother] whispering and telling [the child] she may be living with her soon, and there could be changes after this coming week.”
Under the heading, “Any Other Observations” it is noted:
“[The child] needed some assistance with onset of female issues to which she asked [the mother] to assist her and discussed issues around same. [The mother] showed excitement at being present when this occasion occurred for [the child].”
There is certainly a histrionic element to the terms of the Mother’s email and the submissions that she made on the 9 October 2009 (exhibit 3).
With the benefit of hindsight it was not necessary to reopen the evidence. I admonished the Mother for writing to the Court in the terms that she did without the prior approval or knowledge of the Father’s legal representatives.
Contact Centre Records
The Contact Centre records were produced and tendered on 28 August 2009 and updating records produced on 9 October 2009.
The first supervised visit after the Mother’s time had been suspended pursuant to the orders of June 2008 was not until November 2008 because of the Mother’s work commitments.
At page 5 of the notes it is recorded:
“[the mother] put her arms around [the child] and told her, “I love you”. [The child] did not respond and did not move to return the hug.”
At page 8 of the notes of the report of this visit it is recorded:
“[The child] stated that she was nervous about seeing mum and told senior co-ordinator and facilitator that she didn’t want mum to question her about home and dad. - - -
[The child] remained seated at first when [the mother] entered the room. There was no show of affection.
[The child] sat opposite [the mother] on the other side of the table. [The child] interacted freely with [the mother] listening, responding and asking questions.”
At page 9:
“[The child] said good-bye, she did not reciprocate or respond to [the mother’s] hug and farewell greetings of, “I love you”.”
Notes from Visit - 21 December 2008
Page 5 of the notes:
“No signs of affection during the visit. [The mother] gave her a hug at the beginning of the visit and said to [the child] at the end of the visit, “You know I love you don’t you?”
Page 7:
“[The child] showed no obvious signs of emotion, mostly spoke in monotones.”
Page 8:
“[The child] looked up when [the mother] walked into the room and stood up and put her arms around [the mother] when she walked towards her.”
Notes from Visit - 4 January 2009
“[The mother] asked [the child] for a hug and moved towards [the child] with her arms around her.
“[The child] put her arms stiffly around [the mother] and diverted her face. [The child] did not respond when [the mother] said I love you.”
On page 9 of the report under the heading, “Any Other Observations” there is recorded the following note:
“At the end of the visit [the child] asked to speak to the facilitator about something that was worrying her – she stated that she did not like her mum talking about the Contact Centre. [The mother] had said to [the child], “You know that this is not a lifestyle. We have now used three Contact Centres, […], […] and here.” [The child] stated to the facilitator that she felt her mother was trying to force her into saying that she wanted to go with her and she doesn’t. She stated that she felt that her mum couldn’t do anything whilst she was at the Centre, that mum wouldn’t say anything in front of the staff.”
Notes from Visit - 18 January 2009
At page 9 it is recorded:
“[The child] played ball with the facilitator. She stated to facilitator that it worried her when [the mother] asked her about school, “When are you going back to school”. [The child] said she was worried that she might turn up at the school.”
Notes from Visit – 1 February 2009
At page 9 after the conclusion of the visit it is recorded:
“[The child] stated that she did not like that [the mother] asked about school and did not want to bring her school work to the next visit as [the mother] wanted her to. [The child] further stated that she did not like [the mother] talking to her that, “She wished to live with mum”.”
Notes from Visit – 15 February 2009
At page 9 of the report:
“When [the mother] requested a hug [the child] lent over and gave her a hug. When [the mother] told her that she loved her she did not respond.”
Notes from Visit – 15 March 2009
Additional Notes
There is recorded that at 4.55 pm the Mother phoned the Contact Centre and asked to speak to the facilitator. The note records the mother seeking to cross examine the Centre about events of that day.
I have perused the notes from 29 March 2009 through to 30 August 2009. There was a quite consistent pattern of the child being courteous to her mother, listening to her mother and doing her mother’s bidding, but there was no record of the child being spontaneously affectionate towards the Mother. To the contrary there was evidence of the child not wanting to engage emotionally with her mother.
Objections to Evidence
Counsel for the Father objected to the Mother relying on Dr A and the Reverend U on the basis that their expertise was not established. For reasons I gave at the time I ruled that those witnesses could give their evidence.
The Mother filed a document on 26 August 2009 dealing with her objections to the Father’s material. At paragraph 71 of 72 she objects to the Father relying on the report of Ms C.
Division 12A of the Family Court legislation deals with:
“Principles for conducting child related proceedings”.
Section 69ZT deals with the rules of evidence not applying unless the Court decides.
There was no formal application to strike out Ms C’s report. Had there been I would have over ruled same. I will refer in more detail later in these reasons to Ms C’s report. It is some independent evidence of the child’s wishes albeit the interview was conducted in October 2007.
Determination on the Issue of Residence
I do not propose to make an order as sought by the Mother that the child reside with her.
My reasons for dismissing the Mother’s application are as follows:
·It reflects the status quo being the orders that have been in place since early 2003.
·The Mother constantly has made false accusations against the Father and continues to do so.
·The Mother has involved the child in making accusations against the Father.
·
The Mother is quite unable to promote a relationship between
the child and her father and engages in conduct undermining the Father’s relationship with the child.
·The Mother is unable to put the child’s needs ahead of her own, but one example being the incident of May 2008 when the Mother held the child down on the floor and forced her to write a letter contrary to the child’s wishes. It was the Mother who had the problem with Ms S, certainly not the child.
·Having regard to the numerous events over the last two years detailed in the Father’s affidavit, it is likely the Mother’s conduct will not change for the better and there must be some prospect it will deteriorate even further.
·Dr V refers to the Mother’s capacity for projection. All of her material would seem to be a textbook example of this projecting onto the Father or other witnesses, the Mother’s own failings.
·The Mother has had supervised time with the child from the time of the making of the orders by Registrar Spelleken in mid-2004 through to June 2006 and again from the making of the orders by myself in July 2008 through to the present time. In other words, in a period of almost six years the Mother has had supervised time with the child for four of those years. I appreciate that some of the time in the period leading up to the second trial in June 2006 the Mother had spent time with the child outside the confines of the Contact Centre but nonetheless the time was still supervised. There is reference to this aspect in Dr L’s final affidavit. The sole reason why this situation has been brought about has been the Mother’s ongoing conduct. In the circumstances it would be far too risky to rely on the Mother’s assurances that she would not coach the child or attempt to alienate the child from her father.
·I accept from the report of Ms C annexed to the Father’s trial affidavit that the child has expressed a firm wish to reside with her father.
·I accept from the report of Ms C the child has expressed a firm wish not to spend any time with her mother.
·It is apparent from the detailed notes from the Contact Centre that on a regular basis the child does not engage with her mother in a warm emotional way, turns her face when the Mother is attempting to kiss her and displays a general lack of warm affection towards her mother.
·The Father has until now done his level best to promote a relationship between mother and daughter. After the lengthy hearing in 2002 the Mother continued her campaign of allegations the Father had abused his daughter. Notwithstanding this conduct which led to Registrar Spelleken ordering the Mother’s time with the child be supervised in 2004, in 2006 the Father consented to orders being put in place which saw a gradual build up of the Mother’s time such that it became unsupervised and she had the child in her care four nights out of fourteen.
·The Father has a demonstrated ability to put the needs of the child ahead of his own. The Mother is completely unable to do so.
Whether the Mother Should have Unsupervised Time with Her Daughter
I turn to consider whether the Mother should have unsupervised time with her daughter.
The Father says there should be no time but contends in the alternative that if the Mother is to spend time it should be supervised at a Contact Centre.
I am prepared to make a finding on the available evidence on a consistent basis the Mother has shown herself to be incapable of acting in an appropriate manner towards the child. Examples of such conduct include:
· The incident with Ms S in October 2006 where she endeavoured to video the child’s lessons.
· The incident in May 2008 of pinning the child to the ground and then forcing her to write a letter.
· Being consistently late in returning the child to the Contact Centre after contact periods.
· On a regular basis making inappropriate comments to the child particularly comments denigrating the Father.
· Engaging in verbal abuse of the child.
· Engaging in physical discipline to the child, paragraph 70 of the Father’s affidavit filed 12 June 2009. On the occasions referred to in paragraph 70 the situation had been reached of the child saying:
““I might strangle myself”.
“It is the only way out of this.””
Because of the Mother’s conduct arising from her personality disorder as described by Dr V involving as it does physical and verbal abuse of the child and ongoing denigration of the Father, it would be my view there would be a risk of a return to verbal abuse of the child and ongoing denigration of the Father if there was to be unsupervised time between the Mother and the child. I would not perceive this to be in the child’s best interests and accordingly do not consider unsupervised time to be a viable option.
Report of Ms C
Annexure 4 to the Father’s affidavit of 12 June 2009 annexes a report of Ms C. Ms C is a social worker with considerable experience. She is a Regulation 8 Family Consultant. Her curriculum vitae which precedes her report demonstrates a wide range of experiences, particularly in the family law field. I accept that Ms C has not interviewed the parties to this matter but as distinct from the Mother’s witnesses of the Reverend U and Dr A she has at least interviewed the most important person namely the child. I have no reason to doubt the contents of Ms C’s report. At paragraph 7 of the report she records:
“7.It is [the child’s] expressed view that she no longer wants to spend time with her mother. She claims the reasons for this are because she does not feel safe in her mother’s care, adding that her mother has hit her on the last two weekends she has spent time with her. [The child] also reports that her mother denigrates her father to her every time she sees her – usually when they are in the car and there is no one else around. Additionally, that her mother sometimes yells at her, calls her names and sometimes fails to return her to her father on time.”
At paragraph 10 she records:
“10.It is [the child’s] view that if the Judge said she should continue with the current care regime, she would feel that the Judge was not listening to her because it is not about either her mother or her father but, “it is about me. I would think he wasn’t caring for me.” If the Judge said her time with her mother should be supervised, “it would be better but I don’t want to go at all” and she would refuse to accept the decision. She believes her father would be happy if she wanted to spend time with her mother.”
At paragraph 11 of her report Ms C notes:
“11.[The child] impresses as an intelligent, articulate young girl who was polite during interview. She presented to the interview with a comprehensive statement of her experiences of her mother both verbally and physically along with her feelings in response to these. My experience suggests that children rarely present to counselling with prepared written statements and it is unclear if her father has actively or passively informed her statements. However, if what this child says is reliable and valid her mother seems to be actively attempting to erode her relationship with her father and is hitting her. Further that this is impacting negatively on the mother/daughter relationship.”
I note that the interview for Ms C’s report was conducted back on 18 December 2007.
I did not order a family report in this matter on the basis that there was a plethora of reports dating from 2001 (refer paragraph 59 above) and as noted previously it was my intention to spare the child further involvement in the litigation process.
Should the Mother’s Supervised Time Continue?
The Mother had no time with the child from the time of making the initial order in July 2008 until November 2008. From November 2008 to the present time she has continued to spend time with the child for two hours a fortnight at the Contact Centre.
There was not a great deal of evidence directed to the issue of the viability of long term supervised time where such time is supervised at a Contact Centre.
In the decision of Oscar v Sankey [2007] FamCA 814 the Court was dealing with a not dissimilar situation. In the Appeal Court judgment the dates of birth of the children are not given but it would appear at the time of the trial Judge’s decision they were aged five and seven respectively. There had been before the Court evidence of a psychiatrist. At the Full Court judgment (page 11) the doctor’s evidence at the trial is (in part) set out:
“Well supervision in a short term is normally not a major problem if there is an agreed supervisor and its leading towards an unsupervised form of contact, but if it were planned or viewed as a long term requirement, then that creates all sorts of problems with respect to the dynamics of having other supervisors involved between the parents and the children and in my experience long term supervision ultimately becomes unviable. The other alternative is a supervising body such as the various ones around the State but these usually have a time limit on how long they are prepared to provide supervision for particular families.”
The issue before the Court on that occasion was that the trial Judge had ordered the Father was to spend about four hours every six months with the children. It was tantamount to what was described as “recognition” contact. At paragraph 40 of its judgment the Court indicated:
“Before us Ms Cleary acknowledged that the concept of “no contact” (as raised in the above exchange) includes or covered the idea of “recognition” contact.”
This Court in January 2007 produced a guideline for Family Law Courts and children’s contact services. This document is available on the Court’s website. At paragraph 4.1.1 of that document in Part C under the heading, “Moving to Self-Management” it states:
“It is acknowledged that many families using a children’s contact service should move to self-management in time. It is also acknowledged that for some children supervised visits may, if continued indefinitely, not be in the best interests of a child and if the child cannot maintain a safe face-to-face relationship with a parent the Court may need to determine whether time with the other parent should be for a fixed or indefinite period or cease permanently.”
Although this matter was heard some time ago, on my recollection there was no evidence given as to the availability of the X Contact Centre continuing its role of supervision and if so far how long.
In any event I have reached the firm conclusion that ongoing supervised time at a Contact Centre is not in the best interests of the child in the circumstances described by the evidence in this matter. My reasons for arriving at this conclusion are as follows.
Mother’s Time with Child Should be Suspended
I accept the Father’s evidence of the child’s concerns as set out in his affidavit filed on 12 June 2009 At paragraph 70 he notes (as previously quoted) the child saying:
““I might strangle myself.”
“It is the only way out of this.”
“She told me that she did not want to go again.”
For a child of this age to be making such statements is distressing and alarming.
At paragraph 82 of his affidavit the Father notes:
“The pressure from the Mother on [the child] to have her agree with the Mother’s wishes and views was increasingly bringing into question for [the child] her own set of values about basic matters, such as “truth and honesty” and “what is right versus what is wrong”. [The child] was becoming less accepting of what I said – she would repeat my answer to her question and then return to me with the same question seeking affirmation at a later point – she was in my opinion increasingly not sure whether what she has been told was reality.”
At page 89 of the same affidavit the Father records of the times she is required to go to the Contact Centre since November 2008:
“[The child] has not wanted to go but does. She is often a bit anxious.”
I accept the expressions of the wishes made by the child to Ms C.
I have read the Contact Centre’s records. I see little value in requiring the child to attend a Contact Centre for supervised time with her mother for a brief period once a fortnight on an indefinite basis. The child has been attending Contact Centres for almost four years of the last six years.
The better course is to arrange for the child to be seen by a Family Consultant to explain the Court’s decision to her. I propose to make orders empowering the child as far as possible in the difficult circumstances that prevail.
If she wishes to communicate with her mother by email or by post or by
phone she is at liberty to do so. The Mother may elect to respond to such email or posted letters but the Father, being solely responsible for the child’s wellbeing, would be at liberty to peruse the letters to ensure that nothing inappropriate is said. I do not propose to make an order permitting the Mother to phone the child. Having regard to the history of the Mother’s behaviour over the years I find there is a risk she would take the opportunity to denigrate the Father or in other ways act inappropriately.
In ten months time the child will be a teenager attending her final year of primary school. I do not see an open ended order for supervised time as being in her interests.
I have given consideration to making an order for a fixed time of say twelve months, but an order in such terms would mean the child would have spent the last two and a half years seeing her mother in the confines of a Contact Centre.
It would mean that over the last seven years the supervised time with the Mother would have been for a period of five years. It would prolong the litigation. It would have the impact of keeping the child as the focus of the ongoing dispute between the parents. Where the litigation has gone on for so long with such intensity, mainly generated on the Mother’s part, it is better to allow the child to withdraw to a neutral zone and give her permission to communicate with her mother if she chooses to do so.
For the above reasons orders will issue as set out at the commencement of these reasons.
Because these orders do not reflect the orders sought by the Father or the Mother I will hear submissions when delivering judgment before pronouncing the orders in final form.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.
Associate:
Date: 11 May 2010
ADDENDUM TO REASONS FOR JUDGMENT OF JUSTICE BARRY DELIVERED 11 MAY 2010
On 11 May 2010 for reasons published at that time I indicated I proposed to make Orders in terms as set out at the commencement of the reasons.
However, as the proposed Orders differed from those sought by both the Father and the Mother in various respects I indicated I would allow either party to make further submissions as to the form of the Orders.
The Father has indicated through his legal representative he does not propose to make any submissions.
Written submissions have been received from the Mother together with a separate document being a detailed commentary on the specific Orders proposed.
I have considered the submissions and the suggestions put forward by the Mother. Paragraph 9 of the proposed Orders as contained in the reasons of
11 May 2010 is in the following terms:
“9.In the event the child expresses a wish to see her mother either on a periodic basis or for a single visit the Father is to communicate with the [X] Contact Centre with a view to arranging such visit to occur at such Centre or to be otherwise supervised in such manner as the parties may agree in writing.”
The Mother in her submissions makes the following observations:
“9.In relation to the [X] Contact Centre, and my four years of experience there, the centre have (sic) not been able to accommodate ad hoc hours or changed hours, and have a large volume of people using the centre. Without scheduled and planned visits, it will be impossible for the child to maintain any physical visitations.”
I propose to amend paragraph 9 to read:
“9.In the event the child expresses a wish to see her mother either on a periodic basis or for a single visit, the Father is to communicate with the [X] Contact Centre with a view to arranging such visit or visits to occur at such Centre, if available. In the event such Centre is not available to offer its services, the Mother’s time with the child is to be otherwise supervised in such manner as the parties may agree in writing or is otherwise determined by this Honourable Court.”
The draft Orders will be amended accordingly and will be issued forthwith on today’s date.
There is no evidence before the Court as to the services offered or costs involved in engaging any other supervisory service such as suggested by the Mother in her submissions. In the event the child expresses a wish to see her mother and the X Contact Centre is not available to facilitate such request, the parties may well engage in discussions about an alternative supervisory service and in the event of the parties being unable to agree the Mother can present such evidence to the Court.
Before this situation could arise the child would have to express in clear terms a wish to see her mother with her right to do so to be explained to her by the Family Consultant pursuant to the Orders made.
I certify that the preceding ten (10) paragraphs are a true copy of the addendum to the reasons for judgment of the Honourable Justice Barry dated 11 May 2010.
Associate:
Date: 19 May 2010
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Jurisdiction
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Standing
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Procedural Fairness
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Natural Justice
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Abuse of Process
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