Harlow & Astin

[2009] FamCA 182

FAMILY COURT OF AUSTRALIA

HARLOW & ASTIN [2009] FamCA 182

FAMILY LAW – CHILDREN – Time spent with Mother – Orders – Variation

FAMILY LAW – COURTS AND JUDGES – Disqualification on the basis of bias – Dismissed application

APPLICANT: Mr Harlow

RESPONDENT: Ms Astin

FILE NUMBER: BRC 5262 of 2008

DATE DELIVERED: 19 February 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 19 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Waller, Solicitor of Carne Reidy Herd, Solicitors appeared for the Applicant Father

COUNSEL FOR THE RESPONDENT: The Respondent Mother appeared in person

Orders

IT IS ORDERED THAT:

1. The proceedings be listed for trial for two days commencing 27 August 2009 at 10.00 am in the Brisbane Registry of the Family Court of Australia.

2. The proceedings be adjourned for trial directions compliance check to 10.00 am on 3 July 2009 at the Brisbane Registry of the Family Court of Australia.

3. The Mother file and serve material why she should be at liberty to reopen the issue of who the child, …, born … March 1998 is to live with, by no later than 4.00 pm on 12 June 2009.

4. The Father to respond by no later than 4.00 pm on 27 June 2009.

5. The Father file and serve material relating to his application that the child’s supervised time should cease with the Mother by no later than 4.00 pm on 12 June 2009.

6. The Mother to respond by no later than 4.00 pm on 27 June 2009.

7. The Father’s legal representatives given leave to issue a subpoena to the Gold Coast Contact Centre by no later than 12 June 2009 and to be returnable by 27 June 2009.

8. Both parties given leave to inspect and copy the Gold Coast Contact Centre subpoenaed documentation.

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

1. On 26 June 2006, the parties entered into consent orders in relation to arrangements for their child, a daughter born in March 1998.  Those orders provided for the child to live with the father, for the mother to have unsupervised time with the child commencing daytime only on a Saturday from 9.00 am until 5.00 pm and gradually increasing over a period of time until it was to be Friday after school until Monday before school on alternate weekends.  There were also provisions for holiday contact.

2. Paragraph 9 of those orders provided that neither party file any further application in relation to parenting orders or arrangements in any Court having jurisdiction without first obtaining the leave of this Court to do so.  The father had sole parental responsibility pursuant to the terms of paragraph 10. 

3. There were contravention proceedings brought by the mother, I think in 2007.  I dealt with those and also the mother, at that time, wanted to reopen parenting issues relying on the principle of Rice & Asplund.  I dismissed the mother's application to reopen parenting issues.  The mother appealed to the Full Court against the dismissal of the contraventions and against the dismissal of her application to reopen proceedings and the Full Court dismissed the mother's appeal.  That was on 4 March last year, Finn, Warnick and Murphy JJ.  I have had the opportunity to read that material.

4. The proceedings in July last year were brought by the father seeking leave pursuant to paragraph 9 of the 2006 orders and seeking orders that the mother's time with the child be suspended.  For reasons I gave at that time, I made orders in such terms and adjourned the proceedings for a short period of time to give the mother the opportunity to be heard.  At a subsequent hearing, I ordered supervised time at the Gold Coast Contact Centre.  I am informed and I accept that those orders are being complied with and the mother is seeing the child on a regular basis, supervised on a weekend at the Gold Coast Contact Centre.

5. The father's evidence consisted of affidavits, I believe, from Mr Y who is the headmaster of H School and a Mrs K who I believe is head of the junior school.  Their affidavits related to concerning complaints that the mother had pinned the child to the floor and had then forced her to write a particular letter.  The reliability of that evidence has never been tested but because the evidence was corroborated and corroborated by people in positions of responsibility, I followed my usual course of acting on the assumption that the allegations may be correct and, accordingly, put in place the orders that I did.

6. In addition, apart from ordering supervised time at the contact centre, I invited the mother to produce someone who could be an independent supervisor outside the confines of a contact centre.  All I can note is that no affidavit has been filed on behalf of any potential supervisor and no name has been put forward.

7. The matter was last before the Court in November last year and I adjourned it through until 23 February.  Because of over listing on that date, I directed that the matter be brought forward to today's date.  On 11 February the mother filed a further affidavit and on today's date she has produced a written summary of argument extending over some 20 pages.  I have read that material.  The mother, effectively, is seeking orders that the child live with her.  Mr Waller for the father notes that I made orders in 2007 and at the time I dismissed the contravention applications dismissing the mother's application to reopen it based on the principle enunciated in Rice & Asplund.  As I earlier noted, that was appealed and it was dismissed.

8. What I propose to do is to adjourn this matter to a date of hearing and I will adjourn it for a directions compliance check.  The mother is to file material why she should be at liberty to reopen the residence issue, that is, why she says the child should live with her but I can make it abundantly clear I am not interested in traversing eight years worth of litigation.  The mother must point to changes from the time of the Court's determination in 2007 to the present time. 

9. The mother will be directed to file that material by Friday 12 June.  The father is to respond by 27 June and the matter is on for a directions check or review on 3 July.  In relation to the father's application to cease even supervised time, the father is to file his material by Friday 12 June.  The mother is to respond by Friday 27 June.  That issue is also adjourned to 3 July for review.  I propose to hear both issues on 27 and 28 August so I set aside two days for this matter.

10. There is an application to disqualify myself.  It appears to have been made in the affidavit of the mother.  That issue was raised back in November as I understood it. I elected not to disqualify myself and I do not propose to disqualify myself on this occasion either.  I will be referring to various passages of the mother's affidavit shortly.

    RECORDED  :  NOT TRANSCRIBED

11. I turn to the mother's affidavit to which I have made reference filed on 11 February.  At paragraph 16, she says:

    "One of my witnesses is now too scared to write an affidavit due to her concerns about [the father’s] threatening behaviour."

    RECORDED  :  NOT TRANSCRIBED

12. In paragraph17 of her affidavit, the mother says:

    "My concern is that there may be a risk of her, that is the child, being removed permanently interstate or overseas to stop contact with the mother".

    She says:

    "Currently, I have no power to stop this or indeed any power or control in these matters at all.”

13. Mr Waller would be only too well aware that there is provision in the Family Law Act which says it's a criminal offence to take a child overseas in the event that there are proceedings on foot and I am sure that he would advise his client accordingly.

14. As I understand the father's position, he is a property owner in Australia and presumably has family and other contacts here.  I would have thought it was a remote possibility.  In any event if anybody endeavours to move interstate, they are easily located in my experience.  I have been dealing with a number of those cases already this year and the father would find his position seriously prejudiced. 

    RECORDED  :  NOT TRANSCRIBED

15. In relation to paragraph 18, the mother says:

    "I have to work full time at this particular point.  I was also moving into my own home and paying a high mortgage".

    She is talking about the fact that she is self represented. 

    "His Honour does not consider this nor does he appear to sympathise with the difficulties I have representing myself in such a personally emotive situation in Court. Furthermore, despite the fact that the abovementioned documents were filed J Barry did not address the situation properly and take into account the information given or question [the father] properly.  In effect, he simply ignored the documents".

16. I have to say that any time I say I will read documents that I am asked to read, I read them.  I consider them fully.  I am aware of the fact that many times at hearings such as this, the evidence has not had the opportunity to be challenged.  I have to simply go on submissions on the papers.  It is never an easy exercise.

17. In paragraph 23, the mother says:

    "[The child] has never been given the justice that she deserves nor any essential support that she could do with.  [The child] has been forced to believe in her father's fixed delusions.  These were raised but due to the cognitive process used and the bias, J Barry has been unable to objectively see the psychological impact on the child and the mother."

18. She goes on to say:

    "J Barry is only human too but a case as complex as this requires objectivity and protection of the child's rights and interests."

19. All I can say is in every case, including this one all I can do is proceed on the evidence before the Court.  I am aware of the reports.  I am aware of the history of this matter.  As I have said, I reject any suggestion of actual bias or perceived bias.  I do not intend to disqualify myself.  The mother has made reference to the case of Rudolph & Meicher.  It was a case that had some similarities to this but it was certainly a case there of very powerful evidence of the father having alienated the two older children from the mother.  It was the strongest recommendation from the family consultant, a very experienced family consultant I might add, that the youngest child be immediately placed in the mother's case and that is what I did.  There was an appeal lodged against that but I believe the appeal was withdrawn.

20. I have noted the mother's cri de coeur that the Court somehow monitor the medical condition of the father and also treatment for the child.  It is not the role of this Court to monitor the medical condition of citizens or children.  We will take into account any medical reports that are produced as evidence in a case but it seems to be blurring the role of some form of social engineering to take place that this Court should be required to direct people to have medical attention.  That is not my function.

21. As I say, the only time that I made a determination in this matter was the time that I dealt with the contravention applications.  At the trial in 2006, there were consent orders.  I dealt with the contravention applications and dismissed them largely, I believe, on a legal basis, that either the dates were wrong or no sufficient prima facie case had been established.  In any event, that decision of mine has been reviewed by the Appeal Court and the appeal dismissed. 

22. In July 2008, I made orders but there has been no determination of those issues and suffice it to say there was a strong body of corroborative evidence which led me to make the orders that I did.  So for the reasons given above, I propose to make the directions that I indicated at the outset.  That is that normally I would only want parties to file one affidavit but because there are parallel proceedings I cannot see any way around it.  Here I am specifically ordering affidavits in reply because of the high level of the factual dispute.

    RECORDED  :  NOT TRANSCRIBED

    ORDER DELIVERED

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  19 February 2009