Harper and Cotter

[2011] FamCA 652

FAMILY COURT OF AUSTRALIA

HARPER & COTTER [2011] FamCA 652

FAMILY LAW – CHILDREN-variation of orders – outstanding applications for final parenting orders be otherwise adjourned.

Family Law Act 1975 (Cth)

APPLICANT: Mr Harper

RESPONDENT: Ms Cotter

INDEPENDENT CHILDREN’S LAWYER: Slade Manwaring Solicitors

FILE NUMBER: SYC 1928 of 2007

DATE DELIVERED: 21 July 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cronin J

HEARING DATE: 18 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: Mr Harper

COUNSEL FOR THE RESPONDENT: Mr Autore

SOLICITOR FOR THE RESPONDENT:

Autore & Associates
PO Box 919

Wollongong 2520

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Holmes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Slade Manwaring Solicitors

DX 284 SYDNEY

Orders

1. That until further order, paragraph 5 of the orders made 23 February 2009 is varied such that the time between the husband and the child the child Brooke Harper commence as soon as practicable after the conclusion of school on the Friday of each alternate weekend at the nearest contact centre to the parties and conclude there as soon as practicable before the commencement of school for the child on the Monday morning.

2. That for the avoidance of doubt, the practicability referred to in paragraph 1 of these orders shall be determined by the person in charge of the contact centre.

3. That forthwith upon the making of these orders, each of the husband and the wife do all necessary acts and sign any necessary documents to enrol at the nearest contact centre service for the purposes of the handover of the child the child at the commencement and conclusion of all contact periods.

4. That the application of the wife filed 16 May 2011 and the application of the husband filed 24 June 2011 are both dismissed.

5. That the hearing fixed for 5 September is vacated.

6. That all outstanding applications for final parenting orders be otherwise adjourned to a date to be fixed for hearing before a judge as determined by the appropriate docket registrar.

7. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Harper & Cotter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1928 of 2007

Mr Harper

Applicant

And

Ms Cotter

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 18 July 2011, in the Judicial Duty List, there were two applications before me. Both concerned B born in 2004. The child was the subject of orders made by consent of her parents on 23 February 2009 by Watts J. Under those orders, the child was to live with her mother and spend time with her father each alternate weekend from Friday until Monday and each alternate Wednesday night over into the Thursday morning. There were also provisions for holidays and the like.

2. The applicant before me was the husband Mr Harper. He argued his case strongly, articulately and with passion. He has not seen the child since May. He sought orders that I remove the child from her mother and place her with him. He had no proposal for time to be spent by the child with her mother other than that it be supervised. His application was ill-considered. As the hearing progressed, he seemed to focus more on the possibility that his time was under attack.

3. The respondent was the wife Ms Cotter. She was represented by her solicitor, Mr Autore. Her application was to suspend the husband’s time with the child but she had no serious proposal for the future other than to say that the Court should see what a trial produced. That ignored the fact that the child has already been through that process culminating in the orders of 2009 and it seemed that it was all about to start again. There is every probability with the on-going litigation between the parties that a final hearing is some considerable time away.

4. I also had the benefit of the appearance of an Independent Children’s Lawyer. Notwithstanding he was not favoured with all of the parties’ documents, Mr Holmes appeared as the Independent Children’s Lawyer. His objectivity and assistance was helpful. He proposed that both applications should be dismissed on the basis that neither party reached any acceptable threshold.

5. For the reasons that follow, I agree with the Independent Children’s Lawyer. There is no basis to alter the orders of 2009 other than to vary them such as to endeavour to have their intent become a reality.

6. Because of the disjointed way in which the proceedings were conducted by both applicant and respondent, it is important to set out what evidence each relied upon.

7. It must also be understood that this was an interim hearing on the papers and submissions. The parties did not have the opportunity to cross-examine witnesses. There was no opportunity to test the numerous assertions set out in some of the statements tendered as exhibits.

8. I have applied the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) in an effort to try and get to the bottom of what each party has asserted whilst at the same time work out what proposal best meets the child’s future needs on an interim basis.

9. The parties have a part-heard application before Fowler J. It has little relevance to my determination. The husband is the applicant in those proceedings seeking to have the wife dealt with for contempt of court for breaches of orders relating to the child. It is notable that the application is not a contravention application but rather one relating to contempt of court. The husband tendered the transcript of those proceedings to endeavour to either disprove a fact in issue in the proceedings before me or to show the wife has no credibility and as such, her affidavit evidence could not be relied upon in the proceedings before me. To the extent that that was what the husband intended, he failed.

10. Turning then to the proceedings before me, the husband filed an application in a case on 24 June 2011 supported by an affidavit filed the same day. He asked me to consider an affidavit of Ms C filed 9 March 2011 for other proceedings. That affidavit was apparently produced to show that the wife does not adequately parent the child because on a school sports day, the husband complained to Ms C that the child had not been provided with lunch. Ms C also said that she had seen the husband providing lunch money for the child on other occasions. There was no apparent criticism of the wife for those other occasions. If it was otherwise intended, the inference was not obvious and as such, I could not draw it.

11. The husband also asked that I read and consider a report of the New South Wales Police produced pursuant to a subpoena. I have read all of that material. The police material highlighted the conflictual nature of the parties’ relationship and the fact that the husband will resort to using those community resources wherever he needs confirmation or corroboration that what he is doing is right. It is inappropriate to put the police in that position.

12. The wife relied upon an application in a case filed 16 May 2011, an affidavit in support of that and a notice of risk of child abuse form filed 6 January 2011. She also relied upon affidavits she filed on 27 January 2011 and 20 May 2011 respectively. She initially wanted to tender a letter written to her from a treating doctor of the child but that was objected to by the husband who volunteered the full medical file of the same reported incident. That file was tendered. She also relied upon a report of the Department of Human Services from a meeting on 29 June 2011. That document carries some significance because it is the most recent indication of the intervention of the State in the life of the child. In addition to that material, the wife relied upon is a current interim domestic violence order from the D Town Local Court made 24 June 2011. The husband denied the basis for that interim order but what cannot be denied is its existence and the fact that he was present when it was made. It includes the child as a protected person albeit there is a provision that enables this Court to determine the time between father and daughter.

13. Because of the wife having filed the January risk notice, I inquired about the response of the Department of Human Services. At first, Mr Autore thought the Department may not have responded to the Court’s official notification but he was wrong. I shall refer to the Department’s response below.

14. Mr Holmes asked me to read the report of the Department mentioned above but also the report of Dr E used in the 2009 proceedings.

15. Mr Holmes also referred me to the fact that there is a contact centre nearby to the parties which might be relevant because the wife is now home-schooling the child making the existing orders of school changeover difficult.

16. When all of the evidence is considered, it will be clear that the Department and Police have become involved in this family. The child is in for a rough childhood and teenage period; she is a pawn in an ugly game of both parents.

17. The husband’s evidence was that the wife had flagrantly disregarded the 2009 orders. He said that the child was subjected to abuse because he was being denigrated by the wife in the presence of the child. Comments were made by the husband such as the wife was delusional and that he was a “good” parent much of which was unhelpful and opinionated. As I pointed out, I wanted the facts that would assist me to determine the level of risk (if any) in either parent’s care and what proposal would best enable the needs of the child to be met bearing in mind her entitlement to have both parents in her life.

18. The husband referred to the opinions of Dr E but was rather selective in his quotes.

19. The husband has been recording conversations with the child and also the wife and he provided what he described as transcripts of those conversations. The wife objected to the admissibility of that material based on it having contravened state law but that was not seriously pressed. If anything, the recordings are concerning because of the husband’s need to undertake that sort of evidentiary approach. Just what weight I can give those statements is doubtful because of the fact that the conversations were not the subject of cross-examination. If true, the language of the mother puts her in a bad light but I am mindful of the fact that many adults use pejorative language as part of their everyday speech and I am not sure what impact it has on the child. Relevantly, it is only when the whole of the evidence is considered and tested that a court can determine whether the use of such language is something that might be considered poor parenting. I am not prepared to make that finding now.

20. It is also disconcerting that the husband and wife both appear to have involved the child in concepts such as the need for counselling (see paragraph 9.6 of Husband’s affidavit). If true, it would also appear that the child is now being asked not to discuss issues in at least the mother’s household with the husband. It may be that there is a perfectly logical explanation for that but on this evidence, at least on an interim basis; I could not find that that is poor parenting such as to remove the child from the wife. It must again be remembered that only in 2009; the parties reached agreement and told the Court that the proposed orders were in the best interests of the child.

21. What the husband’s affidavit shows is that the conduct about which he complains was just an extension of what was happening before the orders were made. His explanation was that he agreed to the 2009 orders because he had not seen his daughter and just wanted to get his relationship on track.

22. Recorded conversations between the wife and the child when she was in the husband’s care tend to suggest that the wife was concerned for the child’s welfare. Rather than that being a subject of criticism of the wife, it raises questions of what was happening in the husband’s household. For that, I need to turn below to the wife’s evidence.

23. The husband also said in his affidavit that the wife’s version of what happened that gave rise to the violence order was untrue and he produced some footage from security cameras. I am unable to determine what it all means on the basis of those photographs. What is clear is that an unseemly incident occurred in the presence of the child in which language was used that was unflattering to anyone.

24. There is no reliable evidence before me that suggests that the child is traumatised by her parent’s behaviour. That is somewhat surprising. The wife relied upon a statement that the child suffers from anxiety and wanted to sleep in her bed. I could not conclude that the cause was the conduct of the husband. That evidence needs to be tested and for an expert to comment on why it is that the child is distressed. It may be the dysfunctional behaviour of the adults.

25. The husband also pointed to the statements of the child that she wanted to spend time with him. The child is 7 years old. Little weight can be given in this case to those sorts of observations without some expert evidence.

26. The husband’s evidence ranged over 17 pages but did not address the issues of how he would care for the child nor what arrangements he could put in place to allow any form of arrangement with her mother. He did not address the issue of how the child would deal with the absence of her mother in the event that such an order was made.

27. The wife’s evidence was that the child had been complaining about her father’s “odd” behaviour. I do not know what conclusion I was to draw from such an assertion. The wife referred to the child sleeping with her and being terrified to tell her what the matter was. The child had complained of being ill and exhausted after spending time with the husband. The child apparently complained of spending time watching movies which the wife asserted were inappropriate for the child’s age. She complained that the child returned home dirty. Perhaps that meant that a 7 year old has played to her hearts content?

28. These broad generalisations were similar to those of the husband and largely unhelpful when the Court is obliged to contemplate the matters in Part VII of the Act.

29. The wife referred to the fact that the child complained of having been kicked by the husband. A trip to the doctor left me confused as to exactly who said what. The wife said the child told the doctor that her father kicked her. The transcript of the cross-examination before Fowler J did little to alleviate my confusion and the doctor’s notes produced under subpoena recorded “kicked by dad” but whether that was said by the child or the mother, I am unable to say. All I can discern is that the doctor noted the child had some tenderness. All of that evidence needs to be properly tested. Dr F referred the case to another specialist and noted what the wife said but then added the observation about bruising but there is nothing in the clinical notes that would suggest that around that time, he saw that himself.

30. Accordingly, the medical evidence does little to assist me.

31. Other evidence given by the wife in her affidavit about medical attendances is the subject of the contempt proceedings and has not as yet been given. For the proceedings before me, I was not able to draw any inferences or make any findings that would enable me to say that the child is at unacceptable risk of psychological or physical harm in the care of either parent under the existing orders.

32. The wife also pointed to an incident in which the husband came and took the child without her knowledge and drove off in his car. The wife’s evidence did not set out how that ended but when challenged about it, the husband said he was justified in doing what he did because it was his time and more importantly, he had spoken to the police about it. He put the police in the position of having to decide what his appropriate conduct was. All of this simply highlights the dysfunctional nature of the adults’ relationship such that the husband unilaterally takes the child away when it suits him and the wife in turn complains not about any consequential fear for the child but rather that the husband did not consult her.

33. The objective evidence in this case lies in the material provided by the Department of Human Services. The relevant officer responded in April 2011 to the Court’s notice and advised of knowing of the family and of having no intention of intervening at that time. In a June 2011 departmental meeting, the husband was not a participant and all of the information came from the wife. The clear inference is that the Department was deferring to this Court although there is a strange suggestion that the child should be able to tell the Independent Children’s Lawyer what contact she wanted with her father. That is neither the role of the Independent Children’s Lawyer nor is it responsible to arm a child with that sort of responsibility at the age of 7.

34. Importantly, there is no suggestion of departmental intervention either in this Court or in the state courts. I conclude from that there is no protective concern and the departmental officers are content for the Court to determine the parenting matter.

35. There is an extant domestic violence order but the departmental officers again did not see that as a matter that should require their intervention.

36. Mr Autore submitted that the Court should suspend the existing orders pending the departmental counselling that was apparently beginning with the wife. It was submitted, again without evidence that the child cannot be subject to that counselling process until the orders foreshadowed by the wife are made.

37. This is an interim parenting application. The evidence is contested and untested. I can therefore only determine the matter on agreed facts or on the basis of evidence where I can clearly make findings. That puts the Court in a difficult position of having limited evidence.

38. It is concerning that the child is not spending time with her father having regard to the assumption that at least in 2009, the Court was satisfied that it was in the best interests of the child to share time with both parents. I could not make any findings of abuse. I could not find that there is an unacceptable risk of harm either of a psychological or of a physical nature in the care of either party. I say that with some reservation because of the conduct of both parties who have put the child in an impossible position. This child needs to be treated as a seven year old.

39. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.  Section 65DAC requires that if parties are to share parental responsibility under an order relating to major long-term issues about the children, the order is taken to require the decision to be made jointly by those persons.  There is no prospect in this case of that occurring. 

40. Section 61DA(3) provides that in an interim application, the court may ignore the presumption if it considers that it inappropriate to apply it. That is clearly the case here. My findings are limited and the evidence does not address any of the issues that a court would normally need to contemplate. There are no sufficient concerns about protective issues. The presumption should therefore be ignored here.

41. Section 60B of the Act sets out the objects and principles underlying Part VII. These are the aspirations of the community for children which guide any decision to be made by the courts.

1. The legislative objects require consideration of how the Court can meet the best interests of the children by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. 

2. The legislative intention is also clear that the objects are to protect children from physical or psychological harm.  I have carefully examined the parties’ material and that proffered by the Independent Children’s Lawyer. I am satisfied on this material that the child is not at risk in spending time with her father.

3. It is also intended that children receive adequate and proper parenting. That is not happening here but I am unable to make any finding about why.

4. The objects of the Act also require consideration of the evidence that would enable a court to say that the orders will ensure that the parents fulfil their duties and meet their responsibilities concerning their children. Nothing I read or heard from either party would convince me that either is fulfilling their responsibilities as a parent.

5. Section 60B sets out the various principles underlying the legislative objects. They are that children have the right to know and be cared for by both parents as well as the right to spend time on a regular basis with and communicate with both parents. The wife’s unilateral action here is causing the husband to become frustrated and angry. Neither parent is adopting a responsible attitude to work out what the problem is for the child.

6. The principles include parents jointly sharing duties and responsibilities concerning children as well as agreeing about the future parenting of their children. There is no prospect of that happening here. Neither parent respects the other. The domestic violence order attests to that but so do the recorded views of the wife about the husband in language that should be confined to places other than homes where children can learn the bad habits of their parents. 

7. Section 60CA requires that when a court is deciding whether to make a parenting order, it must regard the best interests of the children as the paramount consideration.  To determine how to assess those best interests, the Court is obliged to turn to the provisions of s 60CC.

8. Consideration of Section 60CC enables a picture to emerge of what orders should be made that might best advance the interests and development of the children. In this case, the evidence falls far short of covering any of the topics with any depth but I am satisfied that the child has a meaningful relationship with both parents; it is sad that she cannot exercise it. I am not satisfied that the risk of harm is present such as to warrant intervention by the Court.

9. Section 60CC has a number of additional considerations. I set them out now. 

10. The child is too young to have her views carry any weight.

11. The nature of the relationship of the child and the respective parents depends upon whose version of the evidence is accepted. Neither parent takes the other seriously and I suspect each would do anything to damage the other’s relationship. That will be a significant matter for trial in this case.

12. Apart from the school food issue, the wife provides all of the physical needs for the child. Evidence about education and health indicates she is progressing well.

13. Other issues such as child support remain untouched by the evidence.

14. Importantly, section 60CC requires the Court to consider the likely effect of changes in the child’s circumstances.  I have no evidence nor any concept of what would happen to the child if I made the orders proposed by each parent.

15. On the evidence presented, I am not satisfied that either party is meeting the emotional and intellectual needs of the child. That too will be an issue for trial. 

16. I have already dealt with questions of family violence in the family violence orders.  Those matters are historically now recorded.  Despite his denials, courts do not make such orders lightly. He denied the assertions. The truth of the issues will no doubt become evidence in the final hearing. For the time being, I must take account of the fact that a court was sufficiently concerned to make an interim order.

17. The wife is currently home-schooling the child and that may continue but in my view so should the 2009 orders. I propose to avoid confrontation between the parties because of the home-schooling to order that the mother deliver to and the husband collect from the contact centre and each immediately do all things necessary to effect such an arrangement.

18. I otherwise intend to make orders dismissing the respective applications. For the benefit of the parties, the 2009 orders are otherwise to resume as soon as the contact centre can make arrangements for the handovers to start.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 21 July 2011

Associate: 

Date:  21 July 2011