HARRIS & HARRIS
[2011] FMCAfam 1087
•10 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARRIS & HARRIS | [2011] FMCAfam 1087 |
| FAMILY LAW – Parenting – interim dispute – children aged 6 and 9 years – high degree of parental conflict to which the children are being exposed – numerous applications made by the husband including seeking that the Independent Children’s Lawyer and Family Report Writer be discharged – husband’s applications dismissed – application made by the wife and supported by the Independent Children’s Lawyer for the husband’s time with the children to be suspended pending the final hearing in six weeks time given concerns that his behaviour is likely to escalate and expose the children to a real risk of psychological harm – interim orders made for the husband’s time with the children to be suspended. |
| Family Law Act 1975, ss.60CA, 60CC, 65DAA |
| Goode & Goode (2006) FLC 93-286 Collins & Ricardo (No.1) [2011] FamCA 532 (Unreported, Watts J, 27 June 2011) |
| Applicant: | MS HARRIS |
| Respondent: | MR HARRIS |
| File Number: | MLC 8871 of 2008 |
| Judgment of: | Bender FM |
| Hearing date: | 4 October 2011 |
| Date of Last Submission: | 4 October 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 10 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Arnold |
| Solicitors for the Applicant: | Rochelle Belcher |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Mr Weston |
| Solicitors for the Independent Children’s Lawyer: | Perry Weston |
ORDERS
The time the children [X] born [in] 2002 (“[X]”) and [Y] born [in] 2004 (“[Y]”) live with the husband pursuant to the orders made
19 February 2009 and 3 July 2009 be suspended.
The husband be restrained by injunction from attending at or being within 500 metres of:
(a)[X] and [Y]’s school;
(b)the wife’s place of residence; and
(c)the wife’s place of work.
The wife be authorised to provide a copy of this order to the Principal of [X] and [Y]’s school.
Both parties are restrained from filing any further Applications in a Case pending the final hearing of this matter without first obtaining leave of the court.
All extant interim applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Harris & Harris is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 8871 of 2008
| MS HARRIS |
Applicant
And
| MR HARRIS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
By way of background, this matter came before me in the duty list on
4 October 2011. I reserved my decision to today.
This is a long standing children's matter. I first made final orders for the living arrangements for the parties’ children [X] born [in] 2002 (“[X]”) and [Y] born [in] 2004 (“[Y]”) on 19 February 2009. Those orders provided for [X] and [Y] to live with the wife for nine days and the husband for five days in each fortnight, as well as provision for the sharing of school holidays and special occasions.
Those orders were “fine-tuned” by me on 3 July 2009 after a Contravention Application was filed by the husband.
On 11 January 2011, the wife filed an Initiating Application seeking a variation of the living arrangements for [X] and [Y], such that she have sole parental responsibility for them, that they live with her and spend alternate weekends with the husband, and there continue to be sharing of holidays and special occasions.
In the Response filed by the husband on 11 March 2011, he seeks orders that he have sole parental responsibility for [X] and [Y], that they live with him and spend unspecified time with the wife.
The final hearing of those Applications is listed before me for three days commencing on 16 November 2011.
The husband filed an Application in a Case on 23 August 2011 which was listed before me on 4 October 2011. He filed, with my leave, a further Application in a Case on 4 October 2011. In his Applications, the husband seeks a number of orders relating to the conduct of these proceedings. He also seeks orders that the current living arrangements for [X] and [Y] be suspended, that [X] and [Y] live with him and spend unspecified time with the wife.
The wife filed an Application in a Case in this matter on
24 August 2011 in which she sought that the husband's time with [X] and [Y] be suspended and that they be returned to her as the husband had failed to return them to her on 23 August 2011 in contravention of the existing orders.
The wife's Application in a Case came before Whelan FM on
25 August 2011. Her Honour ordered the husband to return [X] and [Y] to the wife at 5.00 pm that day at [omitted] Police Station. Her Honour also ordered that [X] and [Y]’s time with the husband be suspended until 1 September 2011 and for [X] and [Y] to attend upon Mr P for an updated family report (noting that Mr P had previously prepared reports in this matter, the first one on 29 January 2009 in relation to the first proceedings and more recently on 26 May 2011 in relation to the current proceedings).
Whelan FM next dealt with the matter on 9 September 2011 and made orders to ensure that previously ordered psychiatric assessments of the parties were completed and placed before the court no later than
3 October 2011 and otherwise all the parties' outstanding Applications in a Case were adjourned to me on 4 October 2011. It is these Applications that I will now deal with.
It is my intention to firstly deal with each of the husband's Applications in relation to the conduct of this matter in turn and to then look at the issue of the interim living arrangements for [X] and [Y] in the period between now and the final hearing of this matter next month. In relation to what I will call procedural matters, I will deal with each of the husband's Applications in turn.
Application to set aside the Family Reports of Mr P and have an alternate psychologist, Ms B, appointed to prepare a Family Report for the purposes of the final hearing
It was Mr Harris' argument that Mr P has shown he is not able to properly assess this family. In particular Mr Harris was concerned as to Mr P's inability to have [Y] speak to him.
In Mr P's report of 26 May 2011 and the updated report of
19 September 2011 Mr P noted [Y] to be difficult to interview.
Mr Harris was also greatly concerned that Mr P did not discuss with [X], when he saw her for the 19 September 2011 report, the nasty letter she wrote to her brother, a copy of which was attached to his affidavit filed on 24 August 2011. Mr Harris deposes in his affidavit sworn on 3 October 2011 and filed on 4 October 2011, at paragraph 12, the following:
12.The extremes and lack of balance in Dr P's past family report show an individual who is biased and unobjective. I believe the lack of objectivity of Dr P has lead to the information I provided to him to be ignored as irrelevant when clearly it was very relevant and important.
When it was brought to Mr P’s attention that he had not interviewed [X] in relation to the letter, Mr P indicated that it had been a clerical mistake and he re-interviewed [X] as to the letter and provided a brief supplementary report on the issue which was given to the parties on 4 October 2011.
Counsel for the wife argued that Mr Harris had not made out
Mr P was biased in any way. It was further submitted on behalf of the wife that Mr Harris sought to have removed from the case anyone whose opinion differed to his own. Counsel for the wife argued that to seek another family report was ludicrous. He further argued that Mr P in his report explained in detail the reasons [Y] was unable to communicate easily with him and that to order the children to see another professional was clearly not in their best interests.
Mr Weston, the Independent Children’s Lawyer, indicated that he had the utmost confidence in Mr P. Mr Weston noted that when the “[X] letter” was brought to Mr P's attention he remedied the oversight quickly and without charge.
It is part of the professional role of the report writer in this jurisdiction, having interviewed the parties and the children, to lay before the court their findings and conclusions about the parties, the children and, if relevant, any recommendations they have as to what in their view is in the children's best interests.
In this process the report writer will often make positive or negative observations and assessments of the parties. This does not equate to bias. If any party to the proceedings does not agree with the conclusions reached by the report writer or the basis for those conclusions they are able to challenge that report writer by way of cross-examination at the final hearing of the matter.
Whilst Mr P did initially overlook the letter [X] wrote to [Y], Mr P explained it was a clerical oversight and immediately rectified it. This does not indicate a lack of objectivity or professionalism.
In relation to [Y] not speaking openly with Mr P,
Mr P in his report/s sets out very cogent reasons for this. Finally, to expose [X] and [Y] to further interviews would be an abuse to them and cannot be seen to be in their best interests in any way.
Accordingly, there will be no order made in the terms sought by
Mr Harris in relation to Mr P and no further orders will be made for an alternative report writer to prepare a family report in this matter.
Application to have Mr Weston removed as the Independent Children’s Lawyer
Mr Harris seeks Mr Weston's removal as Independent Children’s Lawyer on the basis that he is, to quote Mr Harris, "not on the ball" in that he has been tardy in his responses to enquiries by Mr Harris, did not overtly bring the “[X] letter” to Mr P's attention and was therefore not focussed on the interests of the children.
In the matter of Collins & Ricardo (No.1) [2011] FamCA 532 (Unreported, Watts J, 27 June 2011), his Honour dealt with an application by a party to discharge the Independent Children’s Lawyer. His Honour held as follows:
2.Holden CJ in Lloyd and Lloyd and Child Representative (2000) FLC 93-045 dealt with some of the circumstances that might lead to a court discharging an Independent Children's Lawyer.
3.The court should not readily discharge an Independent Children's Lawyer based upon the unsubstantiated complaints of one of the parties. There is nothing in what the father has put to me that would provide a basis for discharging the Independent Children's Lawyer on the basis of actual or perceived bias or on any other basis. There is no evidence that the Independent Children's Lawyer has acted contrary to the child’s interest. The father has not demonstrated that the Independent Children's Lawyer is incompetent in a professional sense nor has demonstrated that the Independent Children's Lawyer lacked professional objectivity. No conflict of interest is alleged.
His Honour's judgment very succinctly summarises my findings in relation to the conduct of Mr Weston as Independent Children’s Lawyer in this matter. There is nothing in Mr Harris' complaints that would justify Mr Weston's removal as Independent Children’s Lawyer. His application for Mr Weston’s removal is therefore dismissed.
Application that there be an order for therapeutic counselling for [X] and [Y]
Mr Harris expressed concern for [X] and [Y], and their current behaviours, and says that “things are way out of kilter for them” which would be best addressed through therapeutic counselling.
Counsel for the wife and the Independent Children’s Lawyer argued this is a matter best dealt with at the final hearing when all evidence is to hand and advice can be sought from Mr P as to what would be the best interventions, if any, for [X] and [Y].
I am in agreement that this is an issue best determined at the final hearing of this matter when all evidence has been heard and tested. Accordingly, no order on this issue will be made at this time.
Application for disclosure by the wife of the name of a psychologist the wife took [X] to in or around August 2011
It is my understanding that it came to light when this matter was before Whelan FM that the wife had taken [X] to a one-off appointment with a psychologist on the recommendation of [X]’s school. Mr Harris did not know of this appointment and now seeks an order that the wife disclose the psychologist's name and any findings of that psychologist.
He argued this order should be made as he wishes to determine the suitability of that psychologist, whether that person was able to get the children to tell them what they tell him, that is about the wife's parenting, and that the appointment was made without consultation with him.
The wife opposes any such order as the appointment was only a one-off appointment. Further she has grave fears that the husband would, if advised of the details of that psychologist, seek to issue an subpoena to have any confidential disclosures made by [X] brought before the court. It is her concern that if orders were made at the final hearing for any ongoing involvement between [X] and that psychologist, [X]’s trust in that person would have been destroyed. The wife also indicated [X] will not be seeing any psychologist until the court finalises the matter and appropriate orders made.
I do not believe the disclosure of the details of the psychologist [X] saw is an order that is in her best interests. In the event that I am persuaded, having heard all the evidence, that either [X] or [Y] would benefit from therapeutic interventions then it is imperative that such counselling not be tainted by this court process.
Accordingly, no orders will be made as sought by Mr Harris in this regard.
Application for disclosure by the wife of the address of Mr K to enable him to be served with a subpoena by Mr Harris
Mr K is, I understand, a friend of the wife who Mr Harris alleges was involved in an incident with [X] and [Y] whereby he threw a TV remote at one or both of them.
Mr Harris wishes to subpoena Mr K to give evidence so he can cross-examine him in relation to this incident and any other matters that he believes are relevant to the determination I have to make.
The wife indicated she was not authorised to provide that information to the husband and argued that Mr Harris should make all reasonable enquiries to ascertain Mr K's service details himself.
I agree with the wife's submissions and no order will be made as sought by the husband.
Application for an order that [Y] be taken to his local General Practitioner to be assessed and, if so determined, referred for speech therapy
Mr Harris seeks this order as it is his evidence that [Y] has a slight lisp and his teacher has indicated to him it would be quite beneficial for [Y] to be assessed as to speech therapy.
The wife argues that it is for the school, not a general practitioner, to assess and recommend such intervention and that the school has told her that [Y] does not require speech therapy at this time.
This is not a matter to be determined at an interim hearing absent independent evidence as to the need of such intervention. Accordingly no order will be made at this time as sought by Mr Harris.
Application for an order restraining legal Counsel from intimidating communication in relation to the payment of costs
When this matter was before Whelan FM the issue of the payment by the husband for the costs of the psychiatric assessment by Dr E as ordered by me on 26 June 2011 was raised because at that time the husband, I understand, had not been in a position to pay his share of the psychiatric assessment. Accordingly that assessment was not available for filing with the court.
Both the wife's solicitors and the Independent Children’s Lawyer had written to the husband indicating payment of the fee for that report was essential for the final hearing of the matter.
Whelan FM made orders on 9 September 2011 requiring the parties to attend Dr E and file their psychiatric assessments with the court no later than 4.00 pm on 3 October 2011. I note that those assessments were handed to me by the Independent Children’s Lawyer on the morning of 4 October 2011.
I am not satisfied there was anything intimidatory in either the wife's solicitors or the Independent Children’s Lawyer corresponding with the husband in relation to the necessity that he ensure that the psychiatric assessment of Dr E was before the court in a timely manner, especially given that the reports of Mr P clearly indicated such an assessment was needed to assist the court in determining the best interests of [X] and [Y].
Accordingly, no order will be made as sought by Mr Harris in this regard.
Application for the wife to disclose the identity of the individual who allegedly attended upon her in relation to her parenting when [X] was present
It was the husband's submission that some months ago [X] told him “a lady with gold teeth” came and talked to mummy on how to look after children. Mr Harris seeks an order that the wife disclose the name of this person.
The wife denies any knowledge of such a visit and argues it is a matter for cross-examination.
The Independent Children’s Lawyer challenged the relevance of such evidence.
I am not persuaded that, in the event there was ever such a visit, it has any relevance to the matters before me. In the circumstances no orders will be made as sought by the husband.
Application for an order for the release of all communications between the wife and/or Rochelle Belcher and the [omitted] Child Care Cooperative
Mr Harris seeks this material as he claims it will show how the wife manipulates others to see him in a bad light.
The wife's Counsel argued that this was a matter for subpoena.
The Independent Children’s Lawyer again queried the relevance of this information given that the children's attendance at this centre was many months ago.
I am in agreement that if the husband seeks to place this evidence before the court he should issue a subpoena and no orders shall be made as sought by Mr Harris.
Interim living arrangements for [X] and [Y] pending the final hearing of this matter next month
This leaves the final matter for determination which is the parties' competing applications in relation to the interim living arrangements for [X] and [Y] pending the final hearing of this matter next month.
In his Application in a Case filed on 23 August 2011, Mr Harris sought orders that the current arrangements for [X] and [Y] be suspended, that both children live in his care on a full time basis and they spend time with their mother only under supervision.
When the matter proceeded before me on 4 October 2011, Mr Harris indicated he was no longer seeking orders that the mother's time be supervised but he did not otherwise have a specific proposal as to what time [X] and [Y] should spend with their mother.
The wife, in her Application in a Case filed on 24 August 2011, seeks orders that the husband's time with [X] and [Y] be suspended until further order.
It is Mr Harris' evidence that [X] and [Y] are at risk in their mother's care. He submitted that he has warned the court, the Department of Human Services, the Police and the report writer of this risk and to date his concerns have all fallen on deaf ears. It is his evidence that [X] and [Y] are left alone in their mother's care, that they are in a highly anxious state and there is a high level of conflict between the children that the wife cannot manage.
The husband makes specific reference to a recent incident where [X] allegedly threatened [Y] with a knife when the wife was out running, which in turn was followed by an incident where he had to take a knife off [Y].
Mr Harris also referred the court to an abusive letter [X] wrote to [Y] and a picture [X] drew as confirming the highly combative state that currently exists between the children.
Mr Harris also has long standing concerns in relation to the severe lice problems that [X] and [Y] have suffered from. He holds the strong view that this problem goes untreated when [X] and [Y] are in their mother's care.
It is his submission that he is the better placed parent to provide [X] and [Y] with the care, supervision and nurturing that is needed to ensure that they are properly looked after.
It is the wife's submission that the husband's obsession that she is unfit to care for [X] and [Y] means they are being subjected to unremitting pressure from their father, such that their psychological wellbeing is placed at risk.
It was submitted on behalf of the wife that Mr Harris continues to expose [X] and [Y] to his unremitting negative views of their mother and it is his behaviours that have caused the very high level of distress and the behaviours that the children are now exhibiting. It was argued that his recent behaviour in withholding [X] and [Y] from their mother, taking them out of school and having them with him at court whilst he filed the applications that are before me, is indicative of his inability to shield [X] and [Y] from his beliefs.
Counsel for the wife submitted that there was a real risk that as the final hearing approaches, the husband’s behaviours in involving [X] and [Y] and incessantly questioning them about their mother and what happens in her household will only get worse, and that the court must have concerns as to how much more the husband will involve them in the court processes.
It was submitted on behalf of the wife that the court had to weigh the benefit to [X] and [Y] in having time with their father against the real risk of harm and psychological damage to them if they were to spend time with him, especially in the lead up to the final hearing. The wife’s Counsel submitted that the court must take a cautious approach, and if there is to be time between the husband and [X] and [Y] between now and the final hearing, any such time should be supervised.
The Independent Children’s Lawyer supported the wife’s application that the husband’s time be suspended. He indicated the contents of the psychiatric report of Dr E and of the reports of Dr P greatly disturbed him and that whilst these reports are clearly untested, it was very apparent that [X] and [Y] “need a break” from the unrelenting pressure they are being subjected to by the husband.
The Independent Children’s Lawyer expressed concerns that, despite the husband’s denials, the husband is subjecting [X] and [Y] to unrelenting questioning about their time in their mother’s home. The Independent Children’s Lawyer expressed concerns that the husband had attended court today with further Applications, documents and pictures. He expressed the strong view that [X] and [Y] do not need to be further involved in these proceedings and that the husband will continue to do so and that this behaviour would escalate and worsen over the next six weeks, as the final hearing date approached.
The Independent Children’s Lawyer submitted that whilst no time between [X] and [Y] and their father for the next six weeks would be regrettable, it was to these children’s benefit that they be afforded six weeks respite from the pressure and conflict to which they are currently being exposed.
The Independent Children’s Lawyer indicated that both the experts had absolutely no concerns about [X] and [Y] being in their mother’s care and that he too had no concerns about [X] and [Y] being in their mother’s sole care.
Finally, the Independent Children’s Lawyer did not support any supervised time between [X] and [Y] and the husband. It was his strong view that [X] and [Y] need a complete break from the parental conflict.
In relation to the experts, as noted previously, the court was provided with the psychiatric assessment of the parties that was completed by Dr E and contained in his report of 19 September 2011.
At pages 15 and 16 of that report, Dr E sets out his opinion as follows:
OPINION
1.This is a matter in which the parties are involved in ongoing process of litigation in regard to the children, like
Mr P, whilst acknowledging that the testing of evidence will determine the facts of this case, I am similarly of the view that it is Mr Harris who is driving much of what has become an unremitting and determined campaign on his behalf to remove the children from Ms Harris’ care, discredit her, and decree her as psychiatrically disturbed and incapable of caring for the children. He continues to make allegations to the effect that she is neglectful and harming of the children.
2.I note that Ms Harris was at one stage diagnosed with possible Bipolar Disorder. She has since attended a Psychiatrist who has treated her and does not find that diagnosis is appropriate. She did describe some earlier issues in her childhood and features of an Eating Disorder. At the time I saw her, there was no evidence of Bipolar Disorder. She impressed as someone of considerable insight. She is aware of her own limitations. She continues to attend a Psychologist and has sought psychiatric treatment and assessment appropriately previously.
3.Mr Harris’ presentation and emotional and psychological functioning have been described. He is a man of rigid temperament who acknowledges his ongoing rage and anger directed against Ms Harris, all of which, according to him, occurs in the context of his pursuit of the children’s best interests. In my opinion, this is a thinly veiled attack upon Mr Harris. He shows little ability or insight in regard to the effects of his ongoing campaign against Ms Harris and the effect this has upon the children. In that respect, he has a certain self righteousness and carries with him a narcissistic wound emanating from his sense of being not cared for, loved and attended by his wife during their marriage.
Further, at paragraphs 5, 6 and 7 Dr E states:
5.As described above, Mr Harris is not a man with whom it is possible to establish rapport. He continues to perceive himself as at odds with all of those with whom he has come in contact in the Court system. Essentially, anyone who disagrees with Mr Harris is likely to be complained about or to be seen by him as disreputable and needing to be removed from the case.
6.Mr Harris’ psychological functioning is disturbed. His life is out of balance and is totally governed by the litigation process and his pursuit of Ms Harris. As a result, he is not a man who is at peace with himself and is determined that his only source of real satisfaction will be the day that he removes the children from their mother, and the forthcoming proceedings which he is mounting can be understood as only the next chapter in what has become a very sorry saga. Given that Mr Harris is not able to enter into a therapeutic relationship, the prognosis in his case is poor. In those circumstances, the most worrying feature of all of this is that the children are likely to be harmed by what essentially amounts to his vexatious pursuit of their mother, and in the process, endangering their view of her and destroying their relationship with her.
7.In these circumstances, it is my opinion that Mr Harris represents a risk to the children and it is my respectful submission that the Court may need to protect them from their father.
Dr E finally notes that he has not seen the children and his report needs to be read accordingly.
Further, as noted previously, the court has received a number of family reports prepared by Mr P. The first, dated 29 January 2009, was prepared when this matter was first dealt with by this court.
Mr P has provided a detailed updated report dated 26 May 2011, attached to his affidavit sworn 19 June 2011 and filed on 23 June 2011. In that report, at paragraphs 46 to 48, Mr P stated the following:
46.It is of great concern that this family’s functioning has deteriorated so significantly. The common denominator to this deterioration is the criticism and the attack by Mr Harris upon Ms Harris, her parenting and the children’s relationship with her. It most obviously impacts upon her, but in my clinical opinion also severely impacts adversely upon the children. The inability of Mr Harris to reflect upon the fallout on the children and to not reflect upon the enormity of the consequences of a pyrrhic victory suggests that it is he who has enormous difficulty elevating the children’s needs ahead of his own. It is my concern that he distorts the children’s experience, compromises their welfare, and does so from a misguided platform of trying to act in the best interests of the children, when the objective reality is that the attack and criticism of their mother to the extent to which he does can only have an adverse effect upon them.
47.My assessment of Mr Harris’ presentation was of a person obsessed and preoccupied by a set of beliefs that reflected grandiosity, exaggeration, confabulation, and at the very least, a profoundly over inflated investment in the criticism of Ms Harris and her parenting, when the objective reality suggests that the parent most likely to be adversely compromising the welfare of the children is Mr Harris.
48.Mr Harris has shown a propensity to be in conflict with anyone who has a view different to his own. His perception is that none of the other persons or agencies involved with his children are capable of acting protectively, and that his concerns are ignored. He does not reflect at all upon the possibility that his concerns are not shared, and that his view may not be correct.
In paragraph 49 of his report, Mr P then stated:
49.There however can be no denying that the children love their father and want to see him, and at least insofar as [X], one of her fears is that she will not see him. I again reiterate the sentiment in my previous report, that is, that there is no sharing and no likelihood of sharing in this dispute. In my view, any future Court Orders should reflect the hopelessness of this situation and the extreme likelihood that there will be no shared parental responsibility…
Because of the “knife incident”, Mr P saw [X] and [Y] on 7 September 2011. When the “letter incident” was clarified, Mr P again spoke to [X]. He prepared two brief supplementary reports after these interviews.
In the first of these brief reports dated 9 September 2011, Mr P concludes as follows:
CONCLUSIONS:
The problems in this family remain unchanged as do my concerns. From what the children present, it is not their mother but rather their father who is a source of great anxiety and concern to them. [X] states very clearly that his anger and his incessant questioning of her causes her considerable distress. [Y] was very regressed and unable to separate from his mother and clearly, his understanding of the process and that somehow speaking with me would entail discussion of his family was sufficient to prevent him from being able to meet with me. It is important to note that notwithstanding the concerns regarding Ms Harris that [Y] clung to his mother for comfort and reassurance at a time of distress and showed anything but apprehension but rather sought much active reassurance from her.
My concerns regarding this family remain unchanged… It still seems to me a crucial consideration that both Mr & Ms Harris have psychiatric assessments completed. I am concerned that notwithstanding his motivation and intent that Mr Harris has escalated conflict around something that could have been managed very differently without awareness or understanding of the impact that his actions had either upon the children or upon Ms Harris. This seems to me to be a pattern associated with Mr Harris and his behaviour, that is that he seems not to understand how his actions impact upon those around him and instead maintains a self righteous stance, justifying his behavior on the basis of perceived injustice, maltreatment, abuse and neglect that has occurred.
My assessment and observation of the children is that they convey anything but being abused and neglected by their mother and to the contrary feel that she is great source of comfort, reassurance, that she empathizes with them, that she understands them and their needs and acts accordingly. It seems also clear that these children love their father and want a relationship with him. Ultimately consideration needs to be paid to what extent his behaviour to them becomes harmful and damaging regardless of his intent.
In the second of his brief reports, dated 27 September 2011,
Mr P states:
From a clinical perspective, the sense of hopelessness about the family’s situation as communicated by [X] was most concerning. She sees little way forward. I am deeply concerned that the core issues in this dispute are not being understood.
Given the problems between Mr & Ms Harris, I wonder whether continuation of the current arrangement is in fact feasible in the long term or whether this family’s situation falls within that category for whom the shared care of children is not possible because of the amount of chronic conflict between their parents…
When considering what orders should be made in relation to children, whether on an interim or final basis, those orders must reflect section 60CA of the Family Law Act 1975 (“the Act”) which provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The Full Court in the matter of Goode & Goode (2006) FLC 93-286 held that when determining parenting orders on an interim basis, a court must consider all the relevant factors as are set out under the Act to determine what orders will be in the children’s best interests.
The existing orders provide for the parties in this matter to have equal shared parental responsibility for [X] and [Y]. Whilst on a final basis, both parties are seeking that they have sole parental responsibility, neither party appropriately sought to ventilate that issue on an interim basis.
However, as the parties currently have equal shared parental responsibility, section 65DAA of the Act requires the court to consider whether the children spending equal or substantial and significant time with each parent is in their best interests.
When determining what is in the children’s best interests, the court must consider the matters set out at section 60CC subsection (2) and subsection (3) of the Act.
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
[X] and [Y] do have a close and loving relationship with each of their parents. However, as the reports from Mr P indicate, there is a question as to whether their relationship with their father is being compromised because of his ongoing belief that they are at risk in their mother’s care. It is causing them both considerable distress, and [X] has openly told Mr P she wants her father to stop this behaviour.
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
In relation to the Applications before me today, this subsection, I believe, goes to the crux of this matter.
Both the wife and the Independent Children’s Lawyer submit that [X] and [Y] will be subjected to an unacceptable risk of psychological harm if they spend time with their father between now and the final hearing because of his unrelenting attack on their mother and his inability to shield them from his negative views. They submit that this will be even more so over the next five to six weeks in the lead up to the final hearing of this matter.
The husband denies he has questioned either of [X] or [Y] in any way as to their time with their mother and that their revelations to him have been voluntary and spontaneous.
The husband further alleges that the wife has been failing to care for [X] and [Y], that she places them at risk by leaving them home alone, by leaving them in the care of inappropriate persons, and that despite his efforts to bring these concerns to the attention of the appropriate authorities, the children continue to remain at risk with their mother.
Subsection (3) of section 60CC sets out the additional considerations that the court must look at in determining the children’s best interests.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
It is quite clear that both children wish to have a relationship with both their parents.
[X] has told Mr P that she is particularly distressed by the parental conflict and finds her father’s attitude, anger and behaviour towards her mother frightening and that it leaves her feeling unsafe.
[Y] has not spoken to Mr P but, as noted, he clearly feels comforted and safe with his mother.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
Again, I note that [X] and [Y] love both their parents, but they are being very negatively impacted by the highly conflicted relationship between them to the extent all experts are concerned for [X] and [Y]’s wellbeing if they continue to be exposed to that conflict.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
This subsection also goes to the heart of the Applications before me today.
The husband genuinely holds the belief the wife places [X] and [Y] at risk and is therefore unable to support the children’s relationship with her. That the children love their mother and see her as a great source of comfort and reassurance is not accepted by Mr Harris.
Whilst the wife wants [X] and [Y] to have an ongoing relationship with their father, she is currently concerned that his belief she is an unfit mother is causing such emotional damage to [X] and [Y] that it is in their best interests that their time with their father be suspended at this time.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Both [X] and [Y] love their father and they want to spend time with him. If I accede to the wife’s application and follow the Independent Children’s Lawyer’s recommendation, there will be a period where that time does not take place.
Given the escalating levels of conflict the children are being subjected to and the stress they are feeling, it is arguable that a respite from that conflict would in fact enhance, rather than diminish, the relationship [X] and [Y] have with both their parents.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not relevant.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Again, this is central to the issues for determination by me today. The wife argues that at this time the husband does not have the capacity to meet [X] and [Y]’s emotional needs because of his strongly‑held belief she is a negligent mother and his inability to shield [X] and [Y] from those negative views.
She argues that the husband places [X] and [Y] under constant pressure by questioning them as to what occurs in her household, by bringing them to court when he makes applications to this court and by blowing out of all proportion incidents that occur between [X] and [Y].
The husband denies this categorically and it is his belief that [X] and [Y] are at risk with their mother and that the disclosures made by them to him are voluntary and spontaneous.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not relevant.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents love [X] and [Y] and want what is best for them. The reality is, however, their views as to what is best for [X] and [Y] are markedly different.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family; and
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Earlier this year, the Magistrates Court granted an eight year intervention order against the husband in the wife’s favour, arising from her allegations of ongoing and constant harassment by the husband based on his beliefs as to her inappropriate parenting.
The husband appealed that decision to the County Court. The County Court overturned the Magistrates Court orders and reduced the length of the intervention order to two years.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This subsection is not relevant as the matter proceeds to a final hearing before me next month.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
The expert reports before the court comment on the impact that the ongoing litigation and the husband’s unremitting allegations of poor parenting against the wife is having on the wife and her capacity to properly parent [X] and [Y]. There is no doubt that the husband’s continued ventilation of these matters, including the Applications that I am dealing with today, are having a negative impact on her, which in turn negatively impacts on [X] and [Y].
Conclusion
Mr Harris quite properly argued that there has been no opportunity for this court to test the evidence before it, and in particular, no opportunity for him to challenge the reports and findings of both Dr E and Mr P. He accordingly argues that it is not appropriate to make orders in the terms sought by the wife and supported by the Independent Children’s Lawyer until such time as that evidence can be properly tested.
He did not, however, posit the same argument in relation to his application to make orders in the terms sought by him.
When making interim orders absent a testing of the evidence, especially where there are huge factual disputes between the parties, the court must always approach such matters with an abundance of caution. Having said that however, the court’s overriding obligation is to ensure that any risk to children is minimised until such time as that evidence can be tested and findings can be made.
In this matter, [X] and [Y] have been exposed to their parents’ conflict since their parents separated over three years ago. Rather than there being a lessening of the parental conflict, it has been increasing such that both children are clearly being severely traumatised by it, to their emotional and psychological detriment.
Whilst I make it absolutely clear that I have not and cannot make any findings as to the allegations each parent makes against the other, and will not be able to until such time as I have had the opportunity to hear this matter in full next month, the information before me at this time persuades me that it is in [X] and [Y]’s best interests that they be given a break from their exposure to the conflict between their parents.
I am satisfied that in the build up to the final hearing, the conflict and tensions between the parties will increase and that [X] and [Y] will be exposed to that increased conflict such that there is a real risk they will suffer psychological harm. I therefore agree with the Independent Children’s Lawyer that [X] and [Y] “need a break” from the current arrangements pending the final hearing of this matter and that it is in their best interests to remain in the sole care of one of their parents until this matter can be heard on a final basis.
Accordingly, I intend to accede to the wife’s application that [X] and [Y]’s time with the husband be suspended pending the final hearing of this matter. I am satisfied that in the intervening period, they are not at risk of harm in the wife’s care, though that question too will be fully ventilated when I hear all the evidence in this matter at the final hearing next month.
I am also satisfied that any form of supervised time between [X] and [Y] and their father at this time would not achieve the respite from the parental conflict they so desperately need at this time.
Finally, given the level of conflict between the parties, in addition to the order I am making suspending all time between [X] and [Y] and their father, I am also of the view that restraining orders should be put in place limiting the husband’s access to the children’s school and placing a reasonable buffer between the husband and the wife’s residence and place of work.
I certify that the preceding one-hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 14 October 2011
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