Hill & Hill

[2007] FamCA 1664

FAMILY COURT OF AUSTRALIA

HILL & HILL [2007] FamCA 1664

FAMILY LAW – CHILDREN – BEST INTERESTS – Continuance of a reintroductory process to father would be traumatic and disruptive to children – Continuance of process not ordered

FAMILY LAW – CHILDREN – PROCEDURE – Final orders previously made – No further orders

Family Law Act 1975 (Cth) s 65L, s 67ZC

APPLICANT: Mr M HILL by his case guardian Mr B HILL  

RESPONDENT: Ms YOUNG
(formerly Ms HILL)

FILE NUMBER: BRF 5835 of 1987

DATE DELIVERED: 1 November 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 12 & 15 June 2007

REPRESENTATION

COUNSEL FOR THE FATHER BY HIS CASE GUARDIAN: Mr Foley of Counsel

SOLICITORS FOR THE FATHER BY HIS CASE GUARDIAN: Cooper Grace Ward

COUNSEL FOR THE MOTHER: Mr Hamwood of Counsel

SOLICITOR FOR THE MOTHER:

Christine Vachon Solicitor

COUNSEL FOR THE INDEPENDENT   Ms Brasch of Counsel

CHILDREN’S LAWYER:

Ms Brasch of Counsel

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Harrington Family Lawyers

Orders

1The application by Mr M Hill by his case guardian Mr B Hill filed on 25 May 2007 is dismissed.

2The application (instanter) by Mr M Hill by his case guardian Mr B Hill made under s 67ZC of the Family Law Act 1975 is dismissed.

3The application by Ms Young (formerly Hill) filed on 5 June 2007 (paragraph 1) is dismissed.

4There be no further orders in the proceedings.

IT IS NOTED that the publication of this judgment under the pseudonym Hill & Hill is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 5835 of 1987

MR M HILL BY HIS CASE GUARDIAN MR B HILL

Applicant

And

MS YOUNG (FORMALLY MS HILL)

Respondent

REASONS FOR JUDGMENT

Procedural background

1On 2 June 2006, after a trial lasting for three days conducted on 24, 25 and 26 October 2005, I made final orders concerning the best interests of the children R born in January 1994, then 12½ years, now 13½ years, who will be 14 years in January 2008, and T born in December 1995, then 10½  years, now 11½ years, who will be 12 years in December 2007 (the children) in relation to contact (as it was then called) with the father, and published Reasons for Judgment.

2The hearing which was listed on 12 June 2007, and continued on 15 June 2007, arose initially pursuant to par 5 of the final orders which I made on 2 June 2006 inviting relisting after the obtaining of a report by Ms E as referred to in par 4 of those orders.

3In addition, the father by his case guardian brought an application in a case in Form 2 filed on 25 May 2007 seeking a variation of the final orders made on 2 June 2006, and the mother brought an application by her response in Form 2A filed on 5 June 2007 seeking that the final orders made on 2 June 2006 be discharged and that the father’s application in a case be dismissed.

4These matters were also listed for hearing on 12 June 2007.

5On 15 June 2007, the father by his case guardian sought leave informally to amend his application in a case by reference to a document described in par 2 of Mr Foley’s written submissions provided on that date described as “a sheet prepared by the case guardian for which leave is sought to file and read”.  However, after argument, the application to amend was withdrawn.

6The structure of the final orders which I made on 2 June 2006 is important.  Relevantly, I will set out pars 2, 4, 5, 6 and 13:

2Subject to the completion of the matters referred to in paragraph 4, the children have contact with the father:

(a)on each third Saturday from 3pm until 5pm;

(b)on the children’s birthdays and the father’s birthday from 4pm until 6pm;

(c)on Father’s Day from 9am until 12 noon;

(d)on Christmas Day from 9am until 12 noon;

(e)on such other occasions, for up to 6 hours, as the parties may agree;

(f)by letters, cards and gifts;

(g)by telephone, at the children’s instigation, if able to be facilitated.

4Pursuant to s 65L of the Family Law Act 1975, and subject to the agreement of the Director of Mediation, Ms [E], social worker and family and child counsellor, is appointed to assist in this matter so as to give effect to recommendations (1), (2) and (3) in paragraph 78 of her report dated 19 December 2003, by arranging, and attending, before the commencement of any contact, such meetings as she may consider appropriate, at such venues as she may consider appropriate, for example:

(a)a meeting or meetings between the children and the paternal grandparents;

(b)a meeting or meetings between the mother and the paternal grandparents;

(c)a meeting or meetings between the children and a skilled person associated with the Acquired Brain Injury Outreach Service, for example, Ms [D], social worker;

provided that before recommendation (3) occurs, that is, before the children meet the father, Ms [E] provide a short report (the report) to the children’s representative, the case guardian, the mother and the Associate to reflect the matters referred to in paragraph 47 of the Reasons for Judgment.

5After the distribution of the report, the matter be listed before the Honourable Justice O’Reilly by any party, by arrangement with the Associate, on short notice.

6The contact orders referred to in paragraph 2 of these orders be suspended until the expiry of 14 days after the report is provided, unless the matter be earlier listed.

13The parties, including the children’s representative, have liberty to apply and may relist the matter before the Honourable Justice O’Reilly by arrangement with the Associate.

7Ms E’s report provided pursuant to the proviso in par 4 is dated 15 March 2007.  I will refer to it in more detail below.

8The father’s application in a case sought new orders 4 and 6, as follows:

That a new order 4.1 (a), (b), (c), (d), (e) be added in the following terms:

4.1That pursuant to s 65L of the Family Law Act 1975, and subject to the agreement of the Director of Mediation, Ms [E], Family Consultant, be further appointed to proceed with the supervision of the preliminary process as previously ordered under s 65L so as to give effect to recommendation (3) in paragraph 78 of her report dated 19 December 2003, that is, the children meet the father;

provided that before recommendation (3) occurs, Ms [E] arrange, and attend, two meetings between the children and the paternal grandparents at such times and at such venues as she may consider appropriate during the period commencing 22 June 2007 and concluding 9 July 2007, thereafter at two week intervals until 3 August 2007, if Ms [E] considers such further meetings are necessary before the children meet the father;

(a)That Ms [E] arrange and attend such other meetings as she may consider appropriate between 22 June 2007 and 3 August 2007.  For example, a meeting or meetings between the children and the paternal grandparents and a skilled person associated with the Acquired Brian Injury Outreach Service, for example, Ms [D], social worker;

(b)That the children meet the father no later than 17 August 2007;

(c)That in relation to all such meetings that Ms [E] arranges that the children are to attend, the mother deliver the children to and collect the children from such venues that Ms [E] considers appropriate;

(d)That the mother shall not speak negatively to the children about these orders, or their paternal grandparents;

(e)That the mother shall do all acts and things necessary to encourage the children to spend time with the paternal grandparents and the father in accordance with these orders.

That a new Order 6.1 be added in the following terms:

6.1That the contact orders referred to in paragraph 2 of these orders be further suspended until 17 August 2007.

9Paragraph 2 of the final order which I made, expressed as “Subject to the completion of the matters referred to in paragraph 4”, should be understood, as I intended, and in any event properly ought be implied, as “the successful completion” of the matters referred to in pars 4(a), (b) and (c), meaning those meetings or similar meetings, especially when read with the proviso to par 4 and the matters in par 47 of the Reasons for Judgment expressly picked up in the proviso to par 4 and, by implication, a favourable report by Ms E having regard to the matters in par 47 of the Reasons for Judgment.  That is to say, as I would have thought plain, par 2 means that if the matters in par 4 realistically are unable to be completed, or there not be a favourable report by Ms E, then the contact in par 2 not occur.

10To better understand par 4 of the final orders, recommendations (1), (2) and (3) of paragraph 78 of the Ms E’s report dated 19 December 2003 should be set out, which recommendations appear at par 39 (p 11) of the Reasons for Judgment given on 2 June 2006:

78.In view of the complexity of the issues involved my recommendation would be for an Order to be made under Section 65(L) for a Court Counsellor to manage a process including:

(1)informing and progressively desensitising the children to their father’s disabilities and appearance

(2)establishing contact between the children and paternal grandparents.  I recommend that three visits be arranged, the first to occur within the Counselling Section, and the others at neutral venues (eg McDonalds/Shopping Centre/etc) if the girls feel confident about this.

(3)once these first two steps have occurred, to arrange for the children to meet with their father, with the presence of the grandparents.  My recommendation is for the initial meeting again to be held in the Counselling Section where [the mother] would be nearby to additionally support the children with any reactions.

11It is necessary also, for context, to set out par 47 of the Reasons for Judgment:

47Ms [E] emphasised that a particular complexity in the matter is that, at that point, it would be necessary for the counsellor to assess how the children have coped, or not coped, with the information and DVD or video presented to them, so that, there should then be a report by the counsellor to the children’s representative as to an assessment of how the children have coped with the preliminary steps with a view to the report stating specifically that the children (1) are ready to see the father; (2) are not ready to see the father but further introductory measures may be appropriate; or (3) the whole process should be stopped on the basis that the children ought not be reintroduced to the father at this stage.

[original bold emphasis, underscoring added]

12Ms E’s report dated 15 March 2007 explained, in effect, that par 4(a) of the final orders occurred, but that pars 4(b) and 4(c) did not occur.

13Initially, the father’s solicitors sought relisting of the matter pursuant to par 13 of the final orders.  By email dated 3 April 2007 the Associate notified the father’s solicitors:

I have referred to Her Honour your request for the matter to be relisted on a date after 9 April pursuant to paragraph 13 of the orders made on 2 June 2006.  Her Honour has mentioned that paragraph 13 of the orders allows for a relisting of the matter only for the purpose of the liberty to apply provision meaning, as is customary, liberty to apply for necessary machinery orders or necessary clarification of the orders.

If the relisting you seek is within this liberty to apply provision please specify what part of the orders either needs machinery orders or clarification.

Her Honour notes however that, by paragraph 5 of the orders, after the distribution of Ms [E]’s report, the matter may be listed by any party by notification to the Associate on short notice.  Her Honour considers that the request for relisting should be met, possibly with a view to the suspension of the contact orders in light of the matters raised in Ms [E]’s report.

Her Honour has relisted the matter at 2.15pm on 12 June 2007.

Any substantive application by any party, with supporting material, must be filed and served by 4pm on 28 May 2007, and will be listed also at 2.15pm on 12 June 2007.

[original bold emphasis]

14The father’s solicitors then notified by return email that they sought the relisting pursuant to par 5 of the orders.

15The Associate then by letter dated 3 April 2007 notified the parties:

This matter has been relisted upon the request of the father’s solicitors.

Her Honour has relisted the matter at 2.15pm on 12 June 2007.

Any substantive application by any party, with supporting material, must be filed and served by 4pm on 28 May 2007, and will be listed also at 2.15pm on 12 June 2007.

[original bold emphasis]

16I had intended that par 4 of the final orders operate so that, if recommendations (1) and (2) in par 78 of Ms E’s report dated 19 December 2003 not be successful, then there be no progression to recommendation (3) so that the contact referred to in par 2 of the final orders simply not come into effect and that be the end of the matter (par 2 of the final orders expressly being “subject to” par 4); but that if recommendations (1) and (2) had been successful, I could satisfy myself as to that before progressing to recommendation (3), that is, the children being reintroduced to the father.   I had hoped this was clear by par 47 of the Reasons for Judgment.

17Thus, the reference in the Associate’s email 3 April 2007 and letter 3 April 2007 to “any substantive application by any party” was not intended by me to invite substantive applications outside those contemplated by par 47 of the Reasons for Judgment, expressly picked up in par 4 of the final orders, but rather to give effect to par 47 of the Reasons for Judgment, as explained.

Father’s application in a case

18It is against this background that I turn now to the father’s application in a case.

19Mr Foley submitted that new orders 4 and 6, as proposed, or similar orders to those proposed, although expressed as a “variation” to the final orders, in substance were necessary to give effect to the final orders which I made, on the basis that on all of the evidence the mother had not “complied” with the orders, and had displayed “brazen refusal” against compliance.

20Mr Foley argued that whilst contravention proceedings would lie against the mother, the father instead preferred the more gentle course of a second set of orders to give effect to the final orders made, but differently styled to be coercive against the mother.  See, for example, new proposed order 4, pars 4.1(c), (d) and (e).

21Paragraph 4 did not require the mother to do any act or refrain from doing any act (leaving aside pars 3, 9, 10 and 11 of the final orders, which are not directly relevant), so that it may be that contravention proceedings against the mother would not lie, although, clearly enough, the mother had at least an implied obligation to do all acts and things necessary for the orders to be carried into effect.  It is not necessary however, in dealing with the father’s application, to determine whether contravention proceedings would lie.

22The matter more directly relevant is that, to the extent that pars 4.1(c), (d) and (e) of new proposed order 4 seek coercive orders against the mother, it is arguable whether such coercive orders would “give effect” to the existing orders (in relation to which the mother is not ordered to do any act or refrain from doing any act) or would amount to a fresh set of coercive orders as to which contravention proceedings certainly would lie for their deliberate breach without reasonable excuse.  However, that is not to say that the tenor of new proposed order 4.1 necessarily is outside the scope of orders which conceivably could be made to give effect to the existing orders, by recording expressly the already implied obligation on the mother.

23Leaving aside procedural aspects of the matter, however, it is necessary first to consider Ms E’s report dated 15 March 2007 in the context of par 47 of the Reasons for Judgment, and in particular to consider whether the children’s best interests would be served now by (referring to par 47 of the Reasons for Judgment) (1) seeing the father; (2) not seeing the father at this stage but further introductory measures be put in place; or (3) the whole process be stopped on the basis that the children ought not be reintroduced to the father at this stage.

24In this context, Mr Foley would be on strong ground if, by reference to Ms E’s report, he could persuade me that the true effect of her report falls within category (2) of par 47 of the Reasons for Judgment, namely that the children “are not ready to see the father but further introductory measures may be appropriate”.

25Mr Foley argued that, in the context of my final orders, I should give more weight to Ms E’s report than to her oral evidence given on 12 June 2007 which, he submitted, represented a “shift” from the position represented in her report, arguing that the “shift” must have resulted from the mother’s affidavit filed on 5 June 2007, which Ms E made clear in her oral evidence she had very recently seen, and in relation to the contents of which Mr Foley attacked the mother’s credibility, submitting that little credibility be given to the mother’s evidence particularly with regard to the purported views of the children set out in that affidavit.

26I have carefully considered Mr Foley’s submission that more weight should be given to Ms E’s report than to her oral evidence. However, as will be seen, in her oral evidence Ms E explained particular paragraphs of her report as not necessarily having the interpretation which Mr Foley argued should be given to them, in particular, pars 16 and 17 of her report (set out below).  Further, it is clear that in the present exercise I must have regard not only to the text of Ms E’s report, but also to her explanation of it as provided in her oral evidence and cross examination on 12 June 2007 in the sense that, on that date, not only did Ms E, helpfully, provide oral clarification of her report but, under cross examination, made more clear her views expressed in the report, by way of enlargement.

27Arguably, pars 16 and 17 of Ms E’s report, particularly by reference back to pars 3, 4 and 5, may seem to sit comfortably with category (2) referred to in par 47 of the Reasons for Judgment, namely that the children are not ready to see the father but further introductory measures may be appropriate, particularly having regard to the circumstance, as observed by Ms E, that the intended process of the children being reintroduced to the father ceased by the mother’s insistence that she and the children would not attend further appointments, which attendance was contemplated by par 4 of the final orders which I made.

28However, in my view, I am obliged to have regard not only to the written text of Ms E’s report, but also her enlargement upon it which orally she gave in explanation of it and also her responses to cross examination of her on that report.  To this extent, in my view it is irrelevant to argue whether, for the purpose of par 4 of the final orders, I have regard only to the written text of the report or also Ms E’s oral explanation of it and her responses given in her cross examination, for the reason that, as must be borne in mind always, my obligation concerning parenting orders in relation to children is that I must regard their best interests as the paramount consideration:  s 60CA.

29Therefore, I am unable to accept Mr Foley’s submission that more weight should be given to Ms E’s report, the written text of which would seem to put the matter within category (2) of the matters referred to in par 47 of the Reasons for Judgment, and less weight to Ms E’s oral evidence and responses in cross examination, which may be seen not to put the matter within that second category at all, on the basis that my task is to consider Ms E’s evidence as a whole and, critically appraising it, including as to the matters raised by Mr Foley to which I have referred, come to a conclusion as to which of the three categories in par 47 of the Reasons for Judgment the matter now falls, and accordingly either make further machinery orders or regard the matter as at an end with failure of the process despite best effort. (Procedurally, as I think by now is plainly understood, par 4 of the final orders set up a “process”, the contact referred to in par 2 always being conditional upon successful completion of the process).  

30I will not set out the paragraphs of Ms E’s report which do not have direct bearing on whether the matter now falls within category (2) of par 47 of the Reasons for Judgment.

31Relevantly, Ms E said in her report:

1.This report is prepared pursuant to Clause 4 of the Orders made by the Honourable Justice O’Reilly on 2 June 2006.

2.The following meetings were arranged:

·        9 November 2006

·        29 November 2006

[The mother] indicated that neither she nor the two girls would be available for these two appointments, citing her ill health, work commitments and constraints associated with moving house.

[Mr B Hill] and [Mrs N Hill] attended on both occasions.

·        18 December 2006

·        3 January 2007

·        10 January 2007

[R] and [T], together with their mother and the paternal grandparents [Mr B Hill & Mrs N Hill] attended on all three occasions.

3.   At the conclusion of these three appointments it was my assessment that, while progress had been made, further introductory time between [R] and [T] and the grandparents was required.  Appointments were arranged for

·        15 February 2007

·        14 March 2007

These appointments were made for 3.00pm so as to minimize absence of the girls from school.

4.I received notification by faxed letter from [the mother] on 8 February that neither she nor the children would be attending the appointment scheduled for 15th February.  Also faxed to me was a letter reportedly written by [R] in which she indicates her opposition to further visits.

5.On 13th March, [the mother] informed me be telephone that she and the girls would not be attending on 14th March.  She further indicated that neither she nor the children will be attending further appointments.

…

13.Over the course of the three meetings, there were some indications that they were beginning to ‘warm’ to the grandparents – reflected for example in more relaxed and animated body language; a greater familiarity in greeting them and generally more responsiveness in conversations.

…

15.I have discussed with [R] and [T], both separately and together, their reactions to these meetings.  While each has said they ‘are not really interested’, there has been no indication in their comments, behaviour or body language of the depth of opposition that has been portrayed to me by [the mother].  There were no indications that either girl was distressed or not coping at any point.

SUMMARY

16.In summary, as indicated in paragraph 4 [skil 3] of this report, it was my assessment in January 2007 that [R] and [T] were coping with the process and were becoming more confident and responsive towards the grandparents, but required more introductory time with the grandparents before they would be ready to proceed with a meeting with their father.

17.I have been unable to proceed further with the supervision of this preliminary process as ordered under Section 65L due to [the mother]’s failure to make the children available for appointments.

32On 12 June 2007, Ms E volunteered a further oral report, and then was cross examined.

33In the context of explaining her report, Ms E made clear that the children’s warming to the grandparents was “very tentative” (T3/30; T3/48); referred to entrenched mistrust between the mother and the paternal grandparents (T4/15); said that the mother does not have the capacity to support the children “through this” and that she was concerned that “we are asking a lot of these girls” (T4/48-50).

34Ms E said (T4/50-5/10):

… I mean, I think that was acknowledged in the previous trial that we’re asking them to go through a process of reintroduction to grandparents and father that they really don’t have any established relationship with in the context of their father’s disability.  If their mother has no capacity to support them in that, effectively we’re putting them in a situation where they’re going to have to manage that unsupported because they haven’t got a relationship of any significance with the grandparents that would provide them with any support.  I’m worried about the impact of that on them, particularly given that I assess them to be not robust, resilient children who would easily cope with that.  I think all of that has certainly become more apparent during this process.

Yes, very well.  Doesn’t that presuppose that the mother’s the only person who can give the children support?  Can’t the paternal grandparents give the children support - - -? ---They could give the children support if there was a relationship between the children and the grandparents but at present there isn’t.

35Ms E said (T5/50) that the process would “be an emotional pressure for them”.

36Ms E referred to short and long term advantages to the children of continuing with the process as including identity formation and a sense of family background (T6/1-12) but as to disadvantages said (T6/20-33):

The disadvantages of pressing on, if your will?---The disadvantages of pressing on are that we are going to be putting these children, I think, right in the forefront of the conflict between the adults and, as I’ve said, I don’t think they are particularly resilient or robust children to easily manage that.  They will be managing, attempting to manage that in a climate where they have no support.

Would it be your opinion that if the matter presses on there will also be an effect on the mother and, if so, a negative one?---Certainly I think it will be very difficult for [the mother] to easily manage that and I’ve said, obviously, the effect on her will be that she may not – she will not be able to support the children through that.  Obviously on a wider level there is the potential for that to impact on her general functioning as a parent which again will be to the detriment of the children.

37Ms E said as to the father’s application in a case, the content of which she had seen (T7/36-42):

Ms [E] are you – of course it’s a matter that is ultimately up to her Honour, but are you in a position to make any recommendations to the Court in relation to the father’s application?---My view, as it has probably become clear, I think it will put considerable pressure on the children to continue this at this point and I’m really – have strong reservations about a continuing progress [skil process] towards meeting with their father. …

38Rather, Ms E went on to say (T7/42-8/2):

…I think, however, that given there has been a little bit of contact, we should perhaps try and optimise what has been achieved and leave the door open perhaps through the grandparents or the father via the grandparents, communicating with the children.  Perhaps sending letters, gifts at birthdays, Christmas, that sort of thing, if the children obviously indicate any interest in seeing the father and grandparents.  Then the mother obviously takes steps to encourage that and that – that the mother obviously keep the grandparents and father aware of addresses of where the children are that I gather under the current orders there is already provision for the father to have access to school records and information about activities and so on and obviously that to be continued.

39In cross examination Mr Foley, for the father, sought to “reconcile” the positive aspects of Ms E’s report as to the children “warming” to the paternal grandparents (par 13), becoming “more confident and responsive” towards them (par 16) and other positive observations in the report (in particular pars 3, 13, 16 and 17) with “what appears to be a somewhat more reticent approach in your oral testimony today”.  The passage is important, both for its question and Ms E’s response to it (T11/20-36):

You see, I’m trying to reconcile what’s in your report with what appears to be a somewhat more reticent approach in your oral testimony today, Ms [E], and perhaps you can – first of all, do you agree with – that there is a difference in emphasis?---I think perhaps what I didn’t possibly explain in the report then is how tentative and how quiet and how reserved their children – these children were and that the responsiveness and the increased body language is very small and very tentative.  It is not a comfortable relationship although there was some movement towards feeling a little bit more at ease.

On the last meeting between the children and the grandparents on 10 January - - -?---Yes.

- - -the children interacted with the grandparents in a positive manner?---The children played some games with the grandparents.  Again, they were very quiet.  There was a little bit of response to some of the questions.  A little bit of explaining the rules of one of the games.  So within that very tentative framework, yes.

40Ms E acknowledged to Mr Foley that if the father is not part of the children’s lives there would be “losses” for them in relation to social identity and “their place within family” and other matters (T13/20), but referred also to the children’s ages and development as including “individuation from their family”, in relation to which support they need support, which Ms E said is “perhaps more critical to them than the absence of a parent”, so that “There are going to be losses for these children both ways” (T13/20-50).

41Ms E agreed with several propositions put by Mr Foley as to, for example, the need “to locate oneself within family” (T14/30) but said there are “other pressures on children”, to which she referred including “the negative impact on children’s later functioning of exposure to conflict and to dysfunctional” family situations (T14/35-50).

42In response to questions by Mr Hamwood, for the mother, the following exchange occurred (T21/28-44):

Okay.  So is it fair to say that in terms of where you presently stand on this issue, that you would see the process of trying to get [R] further involved against her resistance as a process, not essentially worth undertaking?

HER HONOUR:  Sorry, not what?

MR HAMWOOD:  Not essentially worth undertaking?---I’m sorry, could you repeat that again.

Given your position as you’ve expressed it to my learned friend, Ms Brasch- - -?---Yes.

- - - would it be fair to say that with [R]’s opposition to any further involvement in this process, you wouldn’t see attempting to get her to be involved against that opposition as worthwhile?---My concerns about attempting to go further with it focused more on exposure of the children to the conflict and the lack of support to the children.

43Ms E further said that the failure of what I put in place by the final orders is “wider” than merely the mother’s resistance to it, expressing fear that if the process continued the children would get caught up in longstanding conflict between the mother and the paternal grandparents (T22/35-23/10):

HER HONOUR:  Ms [E], do you have the view that but for the mother’s resistance the orders that I made could have progressed to an introduction to the father? ---I think it’s a little bit wider than that.  I think the mother’s resistance is a significant issue.  I think the mistrust, the negative perceptions between the adults and the history of that is also a significant factor and, as I said before, I think it makes it all too ready for all the adults to immediately leap to the most negative conclusion of any difficulties.

But doesn’t one of those lie behind the other?  Doesn’t the adult mistrust and dislike and so forth lie behind the mother’s resistance?---No, I think it’s a longer standing problem than just the resistance over this dispute.  I think you’ve got two quite determined people and I’m fearful that the girls will get caught very much ---

The two determined people being the mother and the father?---No, the mother and the paternal grandfather.

All right, two bodies of people.  Well, sorry, the mother and the paternal grandfather, leaving aside for the mother (sic) the paternal grandmother.  So the two parties in the most conflict then are the mother and the paternal grandfather and it’s that conflict that you’re afraid the children will get caught up in?---Yes.  I mean, I think, obviously the paternal grandmother is involved in that and is certainly no less conciliatory to the mother than the paternal grandfather.

44Ms E spoke of steps to make the children more aware of the nature and extent of the father’s disability, including the children having been shown a DVD of the father in his wheelchair interacting with the paternal grandparents and photographs brought by the paternal grandparents to the sessions with Ms E saying (T23/38-50):

…They’ve not responded to that and- or in the sense of asking questions.  They’ve certainly indicated, you know, in a few words that they didn’t really – weren’t really interested in knowing more at this point or didn’t feel they needed to know more at this point.

That, of course, might not necessarily be their own - - -?---That’s right.

- - - genuinely expressed view because of the mother’s position, isn’t that the case?---It could be or it just may be that at the moment it is something that’s not part of their day to day life. …  

45Ms E said, as to the possibility of direct sessions for the children with Ms D (referred to in par 4(c) of the final orders, Ms D being a social worker with specialty in acquired brain injury) that there could be benefits for the children in attending such a session or sessions to be given independent information as to the father’s disability (“the things they can and can’t do and their levels of feeling”).  Ms E further said (T24/25-40):

… It certainly may take away some of those anxieties or fantasies which in turn may in the future may make it easier for them to contemplate seeking some sort of contact with their father.  It may also have the benefit – because one of the things I think that the children can sometimes feel when a family member has a disability is that somehow they may be at risk of the same - - -

Catching it?---The same thing happening to them, yes.  So I think there could be some benefits in that.

And who should take the children to Ms D or perhaps she could visit them at their school.  I just don’t know the mechanics.  Do you know the mechanics of that sort of thing?---I don’t know how Ms D works at all.

46As to a “differently shaped” s 65L order to assist the mother, regardless of her resistance, to comply with an order “towards meeting the father”, Ms E expressed concern as to continued exposure of the children to conflict and subjecting them to something that may prove to be traumatic or disruptive to them and their developmental needs over time (T25/14-40):

…Well, I think there would still be the concerns about the exposure of the children to the conflict.  I’m not confident that the mother’s resistance is the only problem there.  I’m not confident how easily that would be resolved and I suppose one of the concerns then is the possibility of subjecting the children to - - -

Something they perceive to be forced?---Well, not – no, not something they perceive to be forced but something that proves to be traumatic or disruptive to them and their other developmental needs over a period of time.

So you might – you perceive that a section 65L order in terms might prove to be traumatic to them but an arranged interview or interviews with Ms [D] might not?---Well, that’s not actually exposing and putting the children in that situation where they’re actually having to meet with the grandparents and possibly in the context of knowing how opposed their mother is to that.

So you would favour or disfavour some attendance on Ms [D]?---It’s not something I’ve given a great deal of consideration to at this point.

But you can’t presently see any harm in it?---I can’t see any significant harm and I think it may well, by providing some additional information, help the children perhaps to deal with any fears or any anxieties that are there.  It certainly – I mean, may if it’s possible for someone to go to the home or do it at the school or somewhere that doesn’t involve another disruption to the children.

47Whilst selected parts of Ms E’s evidence, ignoring other parts, may be read in isolation as amounting to a view that the children are not ready to see the father but further introductory measures may be appropriate (category (2) of par 47 of the Reasons for Judgment), the net effect of her evidence in my view is not only that the children should not have pressure put on them to continue the process, which would put them at risk of being further caught up in the conflict between the mother and the paternal grandparents, but also that furtherance of the process now may prove to be “traumatic and disruptive” to the children and to their developmental needs over time (T25/20).

48The father’s application expressly seeks that proposed new par 4.1 be in the context of s 65L supervision of the process. However, s 65L(2) provides that in deciding whether to make a particular order under s 65L(1) in relation to a child, the Court must consider the best interests of the child as the paramount consideration.

49On all of the evidence, I am unable to conclude that any further s 65L process in relation to the children would be in their best interests. Certainly, there is nothing in Ms E’s written report, as explained by her in her oral evidence, or anything in her oral evidence and cross examination, which has the characteristic of recommending positively that further introductory measures are at this stage appropriate for the children or in their best interests and indeed the net effect of her evidence, as I have said, is to the contrary. (Paragraph 16 of Ms E’s written report includes that further introductory time would be “required” before proceeding to meet with the father, but this falls far short of a positive recommendation that such would be in the children’s best interests).

50I have had careful regard to the submissions of all of the parties, in particular Mr Foley’s written submissions provided on 12, 15 and 19 June 2007 (the third as arranged on 15 June 2007) but in my view, having carefully considered the matter, the inevitable result is that I must dismiss the father’s application.  In particular, in so concluding, I have had careful regard to the circumstance that if the mother were not so resistant to the process, it may well have worked, to the children’s benefit.  However, the mother’s inability to support the process seems to me to be a genuine lack of ability, rather than brazen refusal.  In this regard, I would refer to the matters set out in the mother’s affidavit filed on 5 June 2007 in support of her seeking an order that the father’s application be dismissed (as well as her application that the orders which I made be discharged).

51Despite my observation above that if the mother were not so resistant to the process, it may well have worked, that observation is expressed as a possibility only and ought not be regarded as a finding.  Indeed any such finding would be contrary to Ms E’s evidence that the failure of the process I put in place is “wider” than the matter of the mother’s resistance, the conflict between the adults being a “longer standing problem” with the paternal grandmother “no less conciliatory” to the mother than the paternal grandfather (T22/35-23/10 set out above); there being conflict between the mother on the one hand and the paternal grandparents on the other and “concerns about the exposure of the children to the conflict”, Ms E saying also “I’m not confident that the mother’s resistance is the only problem here” and that “one of the concerns” is the possibility of subjecting the children to exposure to the conflict as “something that proves to be traumatic and disruptive” to them and their developmental needs over time (T25/14-40 set out above).

52If I had been able to conclude, as urged by Mr Foley, that the sole or principal cause of the failure of the process has been the mother’s resistance to it, and her consequent negative influence on the children, I would not have hesitated to make the orders urged by Mr Foley or similar orders.  However, on the evidence to which I have referred, the father’s case that the only problem is the mother’s resistance, such that there should now be coercive orders to “give effect” to the final orders made, must fail.

53Independently of the father’s application, I have considered, having regard to Ms E’s evidence, whether it may be appropriate to order the mother to cause the children to meet with Ms D, in relation to an “education” process of learning about acquired brain injury (emphatically to be distinguished from any process of actual reintroduction to the father), which order would fall within the category of a “parenting order” by reference to s 64B(2)(i), namely “any other aspect” of the welfare of a child. It will be recalled that Ms E gave qualified support to such a process (T24/25-40; T25/23-40 set out above).  However, leaving aside whether such would be procedurally appropriate, given that final orders already have been made, I am persuaded by Ms Brasch for the independent children’s lawyer that there should be finality now with no further orders.  I note that Mr Hamwood, for the mother, said during argument that the mother would comply with such an order.  However, by such an order, potentially there would be continued and future conflict, for example, the paternal grandparents by their solicitors seeking that the mother prove her compliance with such an order, potential contravention proceedings if the mother (despite saying she would comply) for any reason did not, and potential early fresh proceedings by the father on the basis of Rice v Asplund (1979) FLC 90-725 if the mother should comply, asserting potentially the basis that because the children will have been educated as to acquired brain injury relevantly there will have been a change in circumstances. Thus, whether there be non compliance or compliance with such an order, either way it is not one which in my view would be least likely to lead to the institution of further proceedings in relation to the children, but rather more likely to do so, and thus would not be an order in the children’s best interests in that, either way, it would be likely to expose the children to continued and future conflict, that being one of Ms E’s principal concerns. Moreover, although Ms E referred to potential benefits to the children of awareness of acquired brain injury by attendance on Ms D, she said (T25/30) “It’s not something I’ve given a great deal of consideration to at this point” and expressed concern that there not be “another disruption to the children”. Thus, I am not persuaded on the evidence that such an order would be in the children’s best interests, and for that reason will not make it.

54As to any other orders to “give effect” to the final orders made on 2 June 2006, in my view “effect” already has been given to them, as written.  There has not been successful completion of the matters referred to in par 4 of the orders.  The proviso in par 4, expressly linked to par 47 of the Reasons for Judgment, has taken effect, with negative result.  Thus, the contact referred to in par 2 will not occur, par 2 having been always and expressly “subject to the completion of the matters referred to in paragraph 4”.

55At the trial in October 2005, Ms Brasch, for the independent children’s lawyer, urged that reintroduction of the children to the father would not be in their best interests.  Since then, a reintroduction process has been attempted, and it has failed.  At the 12 and 15 June 2007 hearing Ms Brasch submitted:

8.Sadly, it seems that Her Honour Justice O’Reilly’s foreboding in her 2006 reasons at 27 has come to fruition:

“I … make the observation, which is trite, that unless the paternal grandparents and the mother can, perhaps with counselling assistance, overcome their past misgivings and mistrust then any orders which I may be inclined to make concerning contact may be a fruitless effort on my part.  In short, the parties’ affidavits, unfortunately, contain many self-righteous justifications concerning past events, which does not inspire confidence as to the workability of the future contact regime.”

9.On all of the evidence before this Court, and despite the best endeavours of the Court’s Expert through the s65L Order, the conflict between the paternal grandparents and the mother remains palpable, omnipresent, invasive and pervading.

10.Despite those best endeavours of the s 65L Order, Ms [E]’s assessment of Oct 2005 at 39 remains apposite:

“The crux of this dispute in my opinion is the poor relationship between the mother on the one hand and the father and paternal grandparents on the other, made more complicated by the special circumstances as a result of [the father]’s severe disabilities and the length of time since there has been any contact …the dynamics between the adults are likely to prove the greater stumbling block in attempts to introduce contact.  This will inevitably impact on the ability of the children to manage the processes and conflicts”.

These young ladies were, and remain, captive of that conflict and dynamic.

56It is not helpful further to explore the reasons for the failure of the process which I put in place. The history of the parties’ relationships is a complex matter, and their conflict a reality.  If the children were forced to meet the father, for reasons of their family identity, potential enjoyment for them and their need as children to learn and develop love and compassion for the father, there would be perceived benefit for them.  However, the perceived detriment to them described by Ms E outweighs such perceived benefit, particularly her evidence that continuance of the process would be to continue to expose the children to conflict which would be traumatic and disruptive to them. I am firmly of the view, having conducted the trial in October 2005, and having carefully considered all of the evidence and the submissions put in June 2007 that it is in the children’s best interests now to put an end to all litigation concerning them and the father.

57I would like to be more robust, and simply make coercive orders that the children see the father.  However, to do so would be to go against the evidence and my conclusion that to order such would not be in the children’s best interests.

58Mr Foley, in his further written submissions received on 19 June 2007, relied on s 67ZC of the Act namely the “welfare” jurisdiction as conferring on the Court the power to make the orders sought in the father’s application as an alternative basis for those orders to be made (if the argument be rejected that those orders were to “give effect” to the existing orders) and as conferring power also to order the mother to take the children to attend a session or sessions with a person such as Ms D who (it was common ground) is willing to participate in such sessions, the case guardian being willing to pay the cost of such sessions.

59However, leaving aside that proceedings in Form 1 related to the welfare jurisdiction have not been instituted, and looking at the matter on the merits, s 67ZC(2) provides that in deciding whether to make an order under s 67ZC(1) in relation to a child the Court must regard the best interests of the child as the paramount consideration. I have already determined that both the orders sought in the father’s application, or similar orders, and an order that the mother take the children to a session or session with Ms D in relation to an “education” process, would not be in the children’s best interests.

60Mr Foley put (written submissions 19 June 2007) that Ms D, so far, has “not been involved in the process of reintroducing the children to the father” and, as I have mentioned, that she is willing to participate in such sessions, the case guardian being willing to pay the cost of such sessions.  I wish to make clear that I have considered the possible involvement of Ms D in relation to a reintroductory process as well as a process in relation to education only.  However, the evidence of Ms E, as I have outlined, is firmly against any reintroductory process at this stage. 

61It follows that the father’s alternative application under s 67ZC also must fail, as not being in the children’s best interests.

Mother’s application (by her response) for the discharge of the orders made on 2 June 2006

62The mother’s response to the father’s application in a case, filed on 5 June 2007, sought that the final orders made on 2 June 2006 be “discharged” (par 1) as well as an order that the father’s application in a case filed on 25 May 2007 be dismissed (par 2).

63I have now neither jurisdiction nor power to discharge the final orders made on 2 June 2006.  Rather, as already explained, they have taken effect, with failure.  The mother’s application (par 1) will be dismissed.

64The result will be that the mother will continue to be bound by pars 9, 10 and 11 of the final orders.

Letters, cards, gifts, and the like

65At the hearing in October 2005, Ms Brasch, for the independent children’s lawyer, urged that the father should be at liberty to send the children photographs, videos, cards, presents, letters and other written communications; and that the mother provide the father, at the father’s expense, copies of the children’s school report cards, school photographs and awards received by the children (Reasons for Judgment, par 86).

66Largely, the second part of the submission is taken up in par 10 of the final orders.

67In her oral evidence on 12 June 2007, Ms E referred favourably to communication by letters, cards, gifts, and the like (T7/42-8/2 set out above).

68Although the final orders do not provide that the father be at liberty to send the children photographs, videos, cards, presents, letters and other written communications (par 2(f) not taking effect), there is no restraint in the orders against the father, or indeed the paternal grandparents, against such activities by them, and in the absence of such restraint in my view they are at liberty to do so. 

69I would caution the paternal grandparents and the father however that any excessive sending of letters, cards, gifts or the like may cause annoyance and thus be self defeating, and that prudence would indicate limitation possibly to the children’s birthdays, Christmas and recognition of achievement.

70I would caution the paternal grandparents and the father also that par 11 of the orders specifies that the parties must not denigrate each other to or in the presence of the children nor in so far as may be possible permit or allow any other person to do so.  Thus, the paternal grandparents and the father clearly must understand that they must not in any written communication denigrate the mother.

71I note par 9 of the mother’s affidavit filed on 5 June 2007 to the effect that gifts given to the children by the paternal grandparents have remained unopened.  The mother should encourage the children to accept communications and gifts, write appropriate thank you notes and if the children wish send cards, letters and gifts to the father and the paternal grandparents.

Annexure A to the mother’s affidavit – letter child R to Ms E

72The mother’s affidavit in support of her response, also filed on 5 June 2007, sought (annexure A) to put into evidence a letter written by one of the children.  The mother said in cross examination that the letter had been written by R.

73Objection to the admissibility of the letter was taken by Mr Foley, for the father by his case guardian.  On 12 June 2007, I ruled that the letter was admissible but that, being the evidence of a child, although admissible the letter was subject to such weight as appropriately may be given to it.

74In the view I have taken of the matter, the letter is of little relevance and I give it no weight.

75Ms E referred also to a letter from R (report 15 March 2007, par 4), which in her oral evidence she confirmed was the same letter.

76In her report (par 4) Ms E referred to the letter as “reportedly” written by R.  In her oral evidence (T6/43-7/35) Ms E recognised that the letter may have been written with some pressure or coercion or encouragement from the mother and said (T20/25-50) it was “difficult to confidently comment” on the letter “without having had some opportunity to speak to the girls” about “aspects” of it.  Thus, it would appear that Ms E did not place great reliance on the letter as necessarily expressing R’s views.

77I have included these observations because, at the hearing, argument about the letter was extensive and disproportionate to its minor place in the evidence.

Conclusion

78In all of the circumstances, the parties’ applications will be dismissed and there will be no further orders. 

I certify that the preceding seventy eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate 

Date: 1 November 2007