Hensen & Lyndall (No. 2)

[2014] FamCA 945

FAMILY COURT OF AUSTRALIA

HENSEN & LYNDALL (NO. 2) [2014] FamCA 945

FAMILY LAW – CHILDREN – Where final parenting orders have been made with respect to with whom the child should live and spend time – Where the only remaining issues for determination are whether the father should receive yearly school reports and school photographs and the form of the final orders made with respect to any prospect of the father making a further application for parenting orders when the child attains the age of 14 years – Where the mother’s evidence is that she is anxious and distressed by the prospect of any communication at all between the child and his father and by the father being provided with any information concerning the child

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Hensen

RESPONDENT: Ms Lyndall

INDEPENDENT CHILDREN’S LAWYER: Ms Jennifer Boulton

FILE NUMBER: BRC 6974 of 2008

DATE DELIVERED: 31 October 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 31 October 2014

REPRESENTATION

FOR THE APPLICANT:	In person
COUNSEL FOR THE RESPONDENT:	Ms Pendergast

SOLICITOR FOR THE RESPONDENT: Matthew Love Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cameron

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jennifer Boulton Solicitor

Orders

it is ordered that:

1. The Father is not to be provided with the annual school reports and/or school photographs of the child, S born … May 2007.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Hensen & Lyndall (No. 2) 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 BRISBANE

FILE NUMBER: BRC 6974 of 2008

Mr Hensen

Applicant

And

Ms Lyndall

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Bell J heard the trial of parenting proceedings concerning the child S (“the child”) born May 2007 between 10 and 14 September 2012 and again on 18 and 19 March 2013.  On 24 May 2013 his Honour delivered a series of orders and  Reasons for Judgment (“the Reasons”) for those orders. 

2. A central issue informing the competing proposals of the child’s parents, the applicant, Mr Hensen (“the father”) and the respondent, Ms Lyndall (“the mother”) were issues surrounding alleged sexual abuse.  His Honour’s Reasons outline the evidence and findings surrounding that issue.  Without repeating what is contained in those Reasons in any detail, his Honour reached a conclusion expressed at [64] of those Reasons as follows:

   I do not consider the evidence is strong enough to make a direct finding of sexual abuse against the Father but, taking into consideration all of the matters that I have touched upon before, it appears to me that I can be left with no other conclusion other than the father is an unacceptable risk to [the child].

3. It was on that basis that his Honour formulated interim orders, which included provision for there to be a period of five months of supervised time between the child and his father, with a view to an updated family report then being obtained, to be prepared by Mr D, psychologist, the family report writer in the proceedings, to assess the impact of that time.

4. There is evidence that the child did not cope emotionally or psychologically with the time spent with the father, albeit that the father would dispute that.  His evidence was to the effect that the child was happy to spend time with him, but the assessment made by Mr D in his further, and most recent, report was that the child was not coping with that regime.

5. The proceedings came before me in circumstances where Bell J’s ill health prevented him from further hearing the matter in the context of reports about the time his Honour had ordered and the contents of the further family report.  In the result, on 8 October 2014, the position was reached that the father was no longer pursuing or contesting the issue of parental responsibility or the fact that the child should live with the mother, or indeed that there should be any order for time and communication with the child.

6. The father further deposed in his affidavit that:

   Until [the child] is 14 years of age I

   1.        Give Parental and legal responsibilities to [the mother].

   2.        Ask to receive from [the child’s] school his reports.

   3.        Be issued with yearly school photos to be billed to myself to a cost           of $50 PA.

   4.        [The child] not be allowed to leave Australia.

7. The last of those issues were resolved by consent on 8 October 2014, that is, the father did not pursue an order to the effect that there be some restraint upon the child having the opportunity to travel with his mother.  I delivered Reasons on 8 October 2014 in making those final orders, expressing my satisfaction that, in the circumstances of this case, those orders met the child’s best interests.

8. The final orders that were made on that day left only the issue as to whether or not the father should receive school reports and school photographs annually, with respect to the child, and whether there should be some set timeframe upon which the father should be permitted to bring a further parenting application.  As already noted, the father had nominated 14 years of age as the time at which there should be some revisiting of the parenting issues.

9. In relation to the first issue, that is the provision of school reports and school photographs, the father contends that if a meaningful relationship is to be re-established between the father and the child at some future time, the provision of school reports and school photographs in the meantime will afford the father the opportunity to, as he puts it “grow up with my son”, and enable him to be in a position to give any resumed communication or relationship with the child in the future the best opportunity for success.  Similar statements are to the effect that the father wishes to be a father to the child and that the limited provision involved in him receiving school reports and school photographs affords that opportunity.

10. Mr D, the psychologist and family report writer referred to, has given oral evidence on that issue before me today.  Mr D acknowledges that from the father’s perspective, there is something in his position so far as maintaining some kind of knowledge about the child as a foundation for, if and when, communication or a relationship is to be resumed and he, Mr D, specifically referred to the child’s “later adolescence or early adulthood”.  As against the potential benefits in that respect, Mr D focused upon the impact upon the mother and, consequently, the potential impact upon the child if orders were made for school reports and school photographs to be provided in the meantime.

11. The mother gave oral evidence before me today and was cross-examined.  Similar to the themes expressed by her as recorded in the expert reports, when it was put to the mother the prospect that photographs or school reports would be provided to the father, she gave evidence to the effect that the prospect of that made her “physically sick” and she also referred to being “anxious” and that it would be something that, as she put it, “opens wounds that I am trying to heal”. 

12. The mother is qualified in an education role and is currently employed at F School, where the child attends.  She points out that, given her particular occupation, she is keenly aware of when it is that school reports issue, and referred to that in a context of that being a factor that would bring to the forefront of her thinking when it was to be that a school report might issue.  Her fear with respect to the child, if the child were to know that school reports and school photographs were being sent to his father, would be that it “would re-open aggressive behaviours” as one possibility, at least. 

13. Mr D gave evidence with respect to the mother, that it would be a matter that was anxiety-provoking for the mother if there were to be the provisions sought by the father.  He also pointed out that her anxiety levels would peak in the period prior to the issue of reports and then their issue.  Mr D assessed that the child is very much attuned to the mother’s feelings.  He described their relationship as a reciprocal relationship.  Mr D gave evidence that if the mother was experiencing anxiety and distress, there was a probability that the child would likewise share in that anxiety and distress.

14. Balancing the competing considerations, Mr D expressed the view that it would not be in the child’s best interests at this stage for there to be provision of the reports and the photographs.  Mr D seemed to accept the proposition that if and when the father is to re-establish some more direct communication with the child, photographs and school reports could be provided at that time, to enable the father to use that foundation in promoting his relationship with the child.

15. Parenting orders, and this is undoubtedly within that concept, are determined by reference to the best interests of children as the paramount consideration. Section 60CC of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant considerations as to the Court making a determination as to best interests. Relevantly, a primary consideration emphasised in s 60CC(2)(b) is the need to protect a child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence. When regard is had to the objects provisions in Part VII, and the s 60CC considerations overall, it is readily apparent that the need is to focus upon the best interests of the child, not either of their parents. Thus it is, that in a case such as this, if it were simply a matter of the mother not liking the concept of the father being provided with reports or photographs, that would simply be irrelevant to the Court’s determination. The Court must focus on the subject child’s best interests.

16. In my judgment, like Mr D, I consider that the balance weighs in favour of not making an order for the provision of school reports or school photographs because that best serves the child’s best interests at the current time.  In my judgment, in circumstances where the mother has sole parental responsibility and for the foreseeable future will be the child’s sole carer, it maximises the child’s best interests for her parental capacity to be maximised.  Put in the negative, there ought not be an impediment upon the mother’s levels of anxieties, and potentially then anxieties experienced and shared by the child.  In my judgment, relying upon Mr D’s evidence, there is a significant prospect of that being so, if an order were made for the father to be provided with the school reports and photographs as sought by him.

17. For these reasons, I am satisfied that at least at this stage, it is in the child’s best interests for there to be an order to the effect that the father is not to be provided with school photographs or school reports.  The father has throughout today’s hearing asserted his innocence of any wrongdoing and referred to the feature that in due course it will be proven that he has done nothing wrong and that the position will be different.  In terms of the mother’s belief system, it needs to be recognised that this matter has been the subject of departmental investigations and concerning findings by a department.  A judge of this Court has determined that the father presents as an unacceptable risk.  The mother’s belief system is undoubtedly informed by such things.

18. I am satisfied, accepting as I do the mother’s evidence, that indeed she is anxious and distressed by the prospect of any communication at all between the child and his father at this stage and by the father being provided with any information concerning the child. 

19. In terms of any further parenting proceedings, I explained to the father, who was self-represented on the hearing today, that there is under Part VII no particular age identified as to when it might be said that a child potentially at risk of some kind of abuse is capable of self-protective behaviours or of such sufficient age and level of maturity as to deal with that potential.  I explained to the father in brief terms what is sometimes referred to as the rule in Rice & Asplund (1979) FLC 90-725.

20. Having regard to those matters, I do not intend to make any order to the effect that the father be permitted to bring proceedings as he contemplates when the child has turned 14 years of age, nor do I propose to make any injunction to the effect that no parenting proceedings can be brought at any particular time.  As I have pointed out to the father, it will be a matter for the Court receiving and hearing any further parenting application in this matter to determine in the context of the final orders that have been made on 8 October 2014, and today, against the whole background of the dispute leading to those respective orders, whether it would be in the child’s best interests for yet further parenting proceedings litigation to be entertained, if and when these are brought.

21. It is obvious that the future is uncertain, and that aspect of the matter can only be determined in the context of actual evidence at the time.  I therefore do not make any further order in the nature of an injunction, nor do I make an order permitting the father at any particular time to bring further proceedings.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 31 October 2014.

Associate: 

Date:  31 October 2014