Harridge and Anor and Harridge and Anor

[2009] FamCA 1154

FAMILY COURT OF AUSTRALIA

HARRIDGE AND ANOR & HARRIDGE AND ANOR [2009] FamCA 1154

FAMILY LAW – CHILDREN – Interim time

Family Law Act 1975 (Cth)

C v C (1996) FLC 92-651

Goode v Goode (2006) FLC 93-286

APPLICANTS: Mr and Mrs Harridge (Snr)

1^st RESPONDENT: Ms Harridge

2^nd RESPONDENT: Mr Harridge

INDEPENDENT CHILDREN’S LAWYER: Ms O’Neill

FILE NUMBER: BRC 1484 of 2008

DATE DELIVERED: 13 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 13 November 2009

REPRESENTATION

THE APPLICANTS: In person

1^ST RESPONDENT: In person

SOLICITOR FOR THE 2^ND RESPONDENT: Peter Hofstee & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms O’Neill

Legal Aid Queensland

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Paragraphs 1 – 4 of the orders made by Federal Magistrate Howard on 11 November 2008 be discharged.

2. The Paternal Grandparents spend time with the children A, born … May 2004, and N, born … October 2005, at and supervised by the C Contact Centre for two (2) hours per fortnight provided that the father is not present at those visits, or before or after those visits.

3. The Mother be restrained and an injunction issue restraining the Mother from bringing the children into contact with the Paternal Grandparents and/or the Father without the leave of the Court either personally or through any agent of hers.

4. The Father spend time with the children supervised by:

   a.A family consultant pursuant to the order made pursuant to s 65L of the Act in these orders; and/or

   b.A person approved in writing by the Independent Children’s Lawyer with such frequency and regularity as might be determined respectively by a Family Consultant or the Independent Children’s Lawyer.

5. In addition to the time previously ordered, the Father shall have telephone communication with the children once per month on a Saturday between the hours of 9.00am and 9.30am commencing Saturday 14 November 2009 and monthly thereafter.

6. The mother shall facilitate telephone communication between the children and the Paternal Grandmother, with the Paternal Grandmother to telephone the mother’s residence on not more than one occasion per week for not longer than twenty (20) minutes on each occasion.

IT IS ORDERED THAT

1. Pursuant to s 65L of the Family Law Act 1975:

   a.A Family Consultant shall give any party to these parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders; and

   b.A report be prepared at the conclusion of such process, and the report shall supplement the Family Reports previously provided by Ms B, and such report to be available for the final hearing of the matter.

2. A copy of the updated report prepared by the Department of Communities (Child Safety Services) pursuant to s 69ZW of the Act be provided to each of the parties.

3. The Response filed by the Paternal Grandmother on 10 November 2009 is dismissed.

4. To the extent that the exception provided for in section 121(9)(g) of the Family Law Act 1975 or the other provisions of that subsection does not otherwise authorise same, the Independent Children’s Lawyer shall have leave to publish an account of these proceedings, namely the provision of a copy of these orders and reasons for judgment of today, and each of the Family Reports prepared by Ms B, to the Director General, The Department of Communities (Child Safety Services).

IT IS FURTHER ORDERED THAT

1. 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 Harridge and Anor & Harridge and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1484 of 2008

MR AND MRS HARRIDGE (SNR)

Applicant Paternal Grandparents

And

MS HARRIDGE

1^st Respondent Mother

And

MR HARRIDGE

2^nd Respondent Father

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter comes before me in the Magellan list.  As a result of orders to be made at a directions hearing on 4 December, the trial will likely be heard in March 2010, that is in about four months from now. At the heart of the current proceedings is the uncontroversial fact that the father has been convicted and gaoled for possessing and distributing child pornography.  He has been released from gaol and is now currently on a probation order.  I am told by him today that, unsurprisingly, a condition of that probation order is that he undertake some form of treatment or therapy in respect of the conduct at the core of the criminal convictions.

2. The father has indicated a preparedness to provide an authority to the Independent Children’s Lawyer to provide such information as might be reasonably required by her in respect of that treatment.  The Independent Children’s Lawyer, as one of a number of orders sought in an application filed by her, seeks an order (paragraph 4) requiring the father to undertake treatment and therapy and associated orders. 

3. In circumstances where the capacity to parent, the responsibilities of parenthood, and like issues are among the considerations that a court must take into account in determining the best interests of children at a hearing, I would be reluctant to order the father to undertake things that should be within his province in the circumstance of this case if he is to convince a court that he is now, and will in the future, exercise appropriate responsibilities with respect to parenting.

4. However, in this case that process is to one extent or another in place by reason of conditions attaching to his post-prison probation order and the court will have at the hearing of this matter information in respect of that treatment and therapy.  I therefore decline to make the order contained at paragraph 4 of the minutes of order put forward by the Independent Children’s Lawyer. 

5. Otherwise the application by the Independent Children’s Lawyer seeks an order that orders previously made by Howard FM on 11 March 2008 be discharged. 

6. That order provided for the paternal grandparents to have time with the children from 10.00 am Saturday to 2.00 pm Sunday each fortnight.  The Independent Children’s Lawyer seeks an additional order that the mother be restrained, and an injunction issue restraining the mother, from bringing the children into the presence of the grandparents or the father pending the final determination of these issues. 

7. The order made by Howard FM on 11 November 2008 was in terms as follows:

   a)That the children [names and dates of birth] spend time with the paternal grandparents once a fortnight supervised at a contact centre in [E] at a time specified by the contact centre; and

   b)Order 1(a) is to remain in place until such time that the paternal grandparents and/or father can prove to the mother that the father has relocated from the paternal grandparents’ residence by provision of a letter from the father’s probation officer; and

   c)Upon satisfaction of order 1(b) the paternal grandparents each fortnight recommence overnight visitation from 10.00 am Saturday to 4.00 pm Sunday with changeovers to continue as per the order on 11 March 2008. 

8. It is common ground in the proceedings before me that the actions contemplated by paragraph 1(b) of those orders took place and, from about 18 December 2008, the satisfaction, or “proof”, required by that order was provided such that the unsupervised period of time contemplated by the subsequent provisions of the order came into effect. 

9. The orders of Howard FM went on to further provide that the father was to have telephone contact with the children once a month and that the father was to have telephone contact with the children once a month when the children are in the grandparents’ care. 

10. The rationale beyond those orders can be seen in the background circumstances earlier referred to by me.  That circumstance is underlined by a notation to Howard FMs orders that provides that:

    This matter has been transferred to the Family Court of Australia given the father’s current status as a registered sex offender and the complex issues that are likely to be connected with any final parenting order in this case.

11. The fact that the father is in fact a registered sex offender has a consequence relevant to parenting proceedings; if the court was minded to make orders for supervised time at a contact centre, the rules and regulations of each of those contact centres prohibit the father exercising time within them. 

12. The current order for injunction sought by the Independent Children’s Lawyer is not opposed by the mother.  Nor is it opposed by either the paternal grandmother or the father. 

13. The reason for the order being sought is, in very broad terms, that the mother, who historically has been the primary carer of these children and is their current primary carer, might be assessed to be somewhat vulnerable and subject to influences by other people, including most particularly the paternal grandparents. 

14. The formal response filed by the paternal grandmother to the application seeks an order (paragraph 1 and 2):

    That the children…live with us, the applicants, on a ratio of 51 per cent and that they live for the remaining 49 per cent of the time with the mother.

    That the father…be allowed to spend time with the abovementioned children (under supervision) while they are living with the paternal grandparents.  If the mother desires, also the father to spend time with them under her supervision.

15. It is plain that the orders made by Howard FM contemplated there being no time being spent between the father and the children.  It is to be emphasised that those orders were made by his Honour on an interim basis and were made as a result, clearly enough, of the circumstances of the husband’s sexual offending earlier referred to. 

16. It is said that the grandparents have either facilitated or permitted a breach of that order by permitting the children to come into contact with the father whilst the children were in their care. 

17. The paternal grandmother, who represents herself before me today, is at pains to argue that, although the event as asserted occurred, it was not as a result of any wrong-doing by her (or indeed the father) but rather was a result of actions initiated by the mother.

18. In essence, the broad picture painted by the submissions of the paternal grandmother is that there is a desire, at least on her part (and, she would allege, on the part of the mother) to effectively have a cooperative arrangement whereby all parties would spend time together and she, (the paternal grandmother) would share significantly in the caring of the children. 

19. The Independent Children’s Lawyer, Ms O’Neill, urges me to take account of the “tenor” and “tone” of the affidavit of the paternal grandmother filed on 10 November 2009.

20. An example of what is meant by Ms O’Neill in that respect can be seen in paragraph 91.  The grandmother there swears:

    On these occasions I have been able to observe the mother’s actions and parenting skills.  It is my opinion [that] though she is working to the full range of her capabilities she is not coping as well as may be expected and requires much supervision and support in these areas.

21. It is implicit in the affidavit, and obvious from her actions, that she sees herself and her husband providing much of that “supervision and support” in the areas asserted by her to be necessary.

22. It is important to emphasise the nature of interim proceedings in this court, all the more so because the paternal grandmother represents herself in these proceedings (as does the mother).  The principles relating to the conducting of interim proceedings take on more acute focus in this case because there will be a trial of the action in about four months’ time.  Accordingly any orders pertaining to the issues in the current proceedings are orders as will pertain for a period of only approximately four months. 

23. The restrictions inherent in the hearing of an interim application in this court have been detailed in many authorities.  Perhaps the best known of them in the pre-reform act context is the decision C & C.  In the post-Reform Act environment, those same principles have been enunciated by the Full Court in the decision of Goode & Goode.  I record that I am aware of what the Full Court said in each of those cases. 

24. It is important for the grandmother, and for all parties before the court, to understand that the nature of interim proceedings occurring before a trial are of a particular type and have a particular quality.  No decision about disputed issues of fact can be made, save where there are admissions or evidence of little controversy, or where it is plainly obvious that an asserted factual matter is correct. 

25. So, too, the decision, although clearly based in a consideration of the statutory mandates and directed towards the best interests of the children, is nevertheless a decision about what is in the best interests of the children pending a trial of the action.  It is not a decision about what is in the long-term best interests of the children.  That decision is confined to a trial at which the evidence can be properly analysed, parties cross-examined, and the like.

26. It is important to bear in mind those considerations in the instant context.  Unsurprisingly, it might be thought, in the context just described, the Full Court has made it clear that the court is frequently assisted by evidence independent of the parties, and in particular expert evidence. 

27. In this case, two reports have been prepared by Ms B who is a psychologist, the most recent of which is annexed to an affidavit filed on 30 September 2009. 

28. The paternal grandmother, in the affidavit earlier referred to, is significantly critical of Ms B and her report.  The grandmother says, for example, at paragraph 12 of her affidavit:

    Ms [B’s] report was based at best upon fabrications and lies uttered by the mother of the children in question.

29. I pause here to observe that that comment needs to be seen against the assertions of the paternal grandmother that the same mother who “has uttered fabrications and lies” is the mother who the paternal grandmother says she wishes to cooperate with in a friendly family environment.  The grandmother goes on to depose:

    [The mother] admitted to telling many ‘half-truths’ and was sorry for the trouble her actions had caused.

30. Further criticisms of Ms B’s report are contained in paragraphs 16 and following of the grandmother’s affidavit.  Many of the criticisms are summarised by the sworn statement at paragraph 47 of the affidavit that:

    Once more, it is the reporter’s personal beliefs, not the facts, that show through on this comment.

31. Again, the nature of these proceedings becomes important.  No doubt the grandmother will have an opportunity, and I should emphasise a full opportunity, to cross-examine Ms B at the final hearing of this matter and will have an opportunity to put to her all of the matters contained in the affidavit, including the alleged deficiencies in her report. 

32. For the purposes of the present proceedings, having read a copy of Ms B’s report, no such deficiencies are apparent to me on its face.  The report seems to me to be a comprehensive analysis of the issues confronting these young children and, in the context of this application, the issues confronting this relatively young mother. 

33. I think it is important to record in the context of this application the specific opinions expressed by Ms B as follows:

    12.2.7  There are also other questions raised in respect of the appropriateness or otherwise of [the father] spending time – unsupervised or supervised – with his sons.  These issues relate to his personality in general, his capacity to model appropriate behaviour for his sons, his capacity to support and encourage their relationships with their primary attachment figure, their mother, and his reliability in complying with court orders.  Although the evidence is certainly not definitive it does seem likely, based on the reports of the children to various professionals and on my observations of their behaviour with their father, that they have spent time with their father despite court orders disallowing this.

34. A number of things emerge from that quoted paragraph.  The first is a clear flagging to the court by Ms B of a number of issues confronting the father which embrace, but are not confined to, the sexual offending behaviour for which he was gaoled. 

35. Secondly, there is an opinion expressed by Ms B in the concluding part of that paragraph that she observed indications from the children that they had spent time with their father despite court orders disallowing this.  The grandmother admits one such occasion.  It is asserted that there is more than one such occasion.  It is not necessary, nor am I able in these interim proceedings, to resolve that factual dispute.  The fact that it was observable to Ms B in the children is, though, a matter of concern for me.

36. The issue live in the proceedings before me on an interim basis is the best interests of these children in terms of them spending any supervised or unsupervised time, with their grandparents. 

37. In the written submissions prepared by Ms O’Neill on behalf of the Independent Children’s Lawyer she posits the question as being one of unacceptable risk.  She submits:

    Are the children at an unacceptable risk of harm as a consequence of the breach of the order of 11 November 2009 and should the order for time with the paternal grandparents be discharged or varied (to supervised time) to reduce that risk pending the trial?  The issue of unacceptable risk should be considered in the light of the father’s offending history and the conduct of the grandparents generally.

38. In light of that submission and the orders sought, it is, in my view, of considerable significance that Ms B opined as recently as September 2009 as follows:

    12.2.8   The paternal grandparents have maintained their keen interest in the children at considerable inconvenience to themselves.  I have also, however, continued to criticise the mother and her parenting and have persisted in their quest to have the children removed from the mother and placed with them.  Very specific court orders were needed to stop the continual notifications to DOCS.  Another major area of concern in relation to the grandparents is their unreserved support of the father and the dismissive attitude of the grandmother in particular to the seriousness of his offences.  It is noteworthy that this tendency on the part of the grandmother was also picked up and recorded at the time of the father’s induction to probation in October 2008 and that [the father] was later asked to attend probation supervision without his mother.  In my opinion the grandparents have been a divisive and destabilising influence on the children since the mother and children moved to [E] and it was assessed by DOCS that information received by the department in respect of concerns about the mother’s parenting might be of a ‘vexatious nature’.

39. Ms B goes on in the following paragraph to record:

    12.2.9   As indicated in the first family report there is no evidence to suggest that the children should not be living with their mother.  The independent evidence as well as the evidence of members of her extended family suggest that she has been accessing appropriate supports and that the children are doing well in her care.

40. The paternal grandmother seeks to criticise the report of Ms B more specifically by saying, in effect, that three weeks after it was issued it was out of date.  I took that to be a reference to the fact that the paragraph just cited refers to the mother being in E whereas (it is accepted) she lives in the C area, some 10 minutes or so away from where the grandparents are living.  That, to my mind, is not a factor causing me to have concerns about the opinion expressed by Ms B.  Rather, it exacerbates the concerns that I have emanating from the opinion provided by Ms B just quoted. 

1. Ms B ultimately concludes:

   12.2.12   Because of the abovementioned concerns about the motives and honesty of the father and the grandparents I do not believe that there should be any unsupervised communication between the children and the father or the paternal grandparents at this stage.

2. The one admitted occasion upon which the children came into contact with their father, whatever be the means by which that was brought about, needs to be seen not so much, in my view, as an event in itself, but rather an event in the context of the matters to which I have just made reference.  It causes me considerable concern. 

3. The opinion of Ms B, the factors identified by her, and the dynamic evidenced in the material before me causes me to have significant concerns about the impact that the time between the children and their paternal grandparents is having upon them. 

4. Furthermore there is sufficient evidence before me to have concerns (and I express it no higher than that on an interim basis) that those matters are also having an impact on the day-to-day parenting of the mother.  The mother is, at the present time until such time as a trial of this matter is heard, the primary carer for the children and, pending the trial, will continue to be so.  No evidence before me persuades me that the best interests of the children requires the children to live with the paternal grandparents.

5. The grandparents’ application can, in my view, be dealt with relatively simply.  The children are now living with the mother.  I have already referred to the fact that, as reported by Ms B, there is no evidence to suggest that the children should not be living with her.  They are yet young, they have received the majority of their primary day-to-day care from their mother.

6. If there is to be a change in that arrangement it is a change that will occur by reason of a court being satisfied it is in the best interests of the children after a proper consideration of all of the evidence, the cross-examination of parties, and an analysis of the opinions, including the criticisms of Ms B’s opinion earlier referred to.  That can only occur at a trial. 

7. There is, in my view, no basis whatsoever to change the existing situation prior to the matter being heard in four months’ time.  I accordingly dismiss the response filed by the paternal grandmother on 10 November 2009.

8. The remaining issue is whether the factors to which I have just made mention lead to a conclusion that the time between the paternal grandparents and the children ought be suspended pending a trial, or, in the alternative, supervised, or, in the alternative, remain as it is pursuant to Howard FMs orders. 

9. Primary among my concerns in arriving at a decision in respect of that are the matters identified by Ms B when seen in conjunction with the breach of the order otherwise referred to.  I am particularly troubled by the opinion that the grandparents “have been a divisive and destabilising influence on the children”. 

10. Although that paragraph specifically refers to the situation, then present, of the mother moving to E, on the whole of the evidence before me I can conclude on an interim basis, as earlier explained, that the divisive and destabilising influence on the children continues.

11. I am not, however, persuaded that the best interests of these young children, who have now been seeing their grandparents for some time, require that time with them should cease. 

12. It seems to me that the best interests of the two children require, in the four months between now and a trial, that the time between the grandparents and the children be supervised. 

13. Paragraph 6 of the orders sought by the Independent Children’s Lawyer seeks an order, pursuant to section 121 of the Act, approving the Independent Children’s Lawyer providing an account of proceedings to the Director-General of the Department of Communities (Child Safety Services), specifically a copy of these orders and the family reports of Ms B.  I intend to make an order pursuant to that section. 

14. It is by no means clear to me that the intended publication would not, in any event, be caught by an exception to that section.  However, it is appropriate, given the mischief designed to be met by section 121, that, in any event, the Independent Children’s Lawyer’s position be clarified by the making of specific orders. 

15. I have said on many occasions that in cases of real difficulty involving children, it is of benefit for children if the State agencies (who are charged with different responsibilities under different legislation) and this court, who has its own specific responsibilities under its own legislation, can work - to the extent that it is possible - cooperatively together. 

16. It seems to me both appropriate and highly intelligent to provide the Director-General of the Department, who have had contact with this family, with a copy of the orders and the reports of Ms B.  I will include in that list a copy of my reasons for judgment given today.

17. I orders accordingly.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  1 December 2009