HOLTON & BURN

[2013] FamCA 95

FAMILY COURT OF AUSTRALIA

HOLTON & BURN [2013] FamCA 95

FAMILY LAW – CHILDREN – With whom a child spends time – Where the Father has not complied with previous Orders to undertake psychiatric assessment – Where there is a history of domestic violence – Where there have been many court proceedings – Child to live with Mother – No Orders made for the child to spend time with the Father – Father to communicate with the child by telephone – Orders by Consent allowing the Father the opportunity to make a new application upon fulfilling Orders regarding psychiatric assessment

FAMILY LAW - PRACTICE AND PROCEDURE – Transfer to Federal Magistrates Court – Where neither party is alleging sexual abuse – Where there is not enough evidence to indicate a likelihood of sexual abuse – Matter removed from the Magellan list

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Holton

RESPONDENT: Ms Burn

INDEPENDENT CHILDREN’S LAWYER: Michelle Dooley

FILE NUMBER: BRC 6986 of 2008

DATE DELIVERED: 8 February 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 7, 8 February 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: The Applicant appearing in person

COUNSEL FOR THE RESPONDENT: Ms Frizelle

SOLICITOR FOR THE RESPONDENT: Federov Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Cameron

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Dooley Solicitors

It Is Ordered By Consent That

1. The child, E born … June 2003, live with the Mother.

2. The Mother have sole parental responsibility for the child.

3. Pursuant to r. 15.45(1) of the Family Law Rules 2004 (Cth) Dr B is appointed as a single expert witness to conduct a psychiatric assessment of the father and to provide a report regarding the father’s mental health and functioning.

4. On or before 1 August 2013 the father is to attend upon Dr B for the purpose of undergoing a psychiatric assessment and to facilitate Dr B preparing his report.

5. The Independent Children’s Lawyer (ICL) is to provide to Dr B a letter of instruction setting out those matters that are to be addressed by Dr B in his report. 

6. The ICL is hereby authorised to provide to Dr B copies of all Orders made and affidavits filed in the proceeding, together with copies of any Family Report prepared by any family consultant or psychologist and the psychiatric report prepared by Dr M, as well as any documents obtained by the ICL pursuant to subpoena that the Independent Children’s Lawyer considers to be relevant together with a copy of this Order and the Reasons for Decision of Justice Kent delivered on 8 February 2013.  

7. Dr B is hereby authorised to release his report to the Independent Children’s Lawyer. 

8. The Father is to pay for the cost of the assessment by Dr B and report.

9. The Independent Children’s Lawyer shall provide to the father and the mother’s solicitors a copy of Dr B’s report by posting a copy of such report to the parties’ respective addresses for service within seven days of receipt of the report from Dr B.

10. Provided that the Father complies with paragraphs 4 and 8 of this Order, and the father files his application not later than 14 days from the receipt by him of Dr B’s report, then the father is at liberty to file an application in the proceeding for further orders regarding E’s time with him.

11. The Father shall file the application referred to in paragraph 10 of this Order in the Federal Magistrates Court of Australia. 

12. The proceeding is hereby declassified as a Magellan Matter and removed from the Magellan List.

13. The proceeding is hereby transferred to the Federal Magistrates Court of Australia at Brisbane.

14. In the event that the Father fails to comply with paragraphs 4, 8, 10 or 11 of this Order the ICL is hereby discharged.

It is Further Ordered That

1. The Father have telephone communication with E each Tuesday with the Father to initiate the telephone call between 5:00 pm and 5.30 pm.

2. The Mother keep E provided with a mobile telephone number and keep the Father informed of E’s mobile telephone number from time to time.

3. The Mother do all acts and things reasonably necessary to facilitate the telephone communication between the Father and E referred to.

It is Further Ordered by Consent That

1. The Father be restrained and an injunction be issued restraining him from:

   (a)        providing the mobile telephone number for E to W born … November 1995; and

   (b)       sending text messages to the mobile telephone number for E or calling it outside of the designated times.

2. The Father himself do all acts and things reasonably necessary to ensure that W does not text or telephone on that number.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holton & Burn 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 6986 of 2008

Mr Holton

Applicant

And

Ms Burn

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Yesterday was to be the commencement of a two day trial for parenting orders in this matter between Ms Burn as the applicant Mother (the “Mother”) and Mr Holton, the respondent Father (the “Father”).  The interests of the children initially the subject of the proceedings, including E, who remains the only child about whom orders are sought – were separately represented by an Independent Children’s Lawyer, Michelle Dooley, who attended at the trial by Counsel, Mr Cameron.  The trial process was in essence sabotaged by the feature that the Father had failed to comply in any material respect with the directions made for the trial by Registrar Stoneham.

2. The directions included, as is usual for trial directions for trials in this Court, directions as to the filing of material, including details of any response or application containing an outline of the specific parenting orders sought; the filing of affidavits in a timely way to support those orders sought; and the like.  The Father did not file any material in compliance with those directions.  What he did do was file as late as 31 January 2013 an affidavit.  Obviously, the late filing of that affidavit created the difficulty for the Mother, which was sought to be avoided by the trial directions themselves of late receipt of material, of her having no reasonable opportunity to respond to it.

3. The other compounding feature, so far as the Father’s conduct is concerned, is that an Order was made by Demack FM long ago for the parties to attend for the purpose of psychiatric assessment and also for the purpose of updating family reports.  The material before me included an affidavit by the Independent Children’s Lawyer setting out the concerted attempts made since Demack FM’s Order of 1 August 2011 to have the parties attend upon Dr M for the purpose of psychiatric assessment of both parties.  The Mother complied with the requests of the Independent Children’s Lawyer consequent upon that Order and Dr M provided an affidavit and report to the Court setting out her assessment in respect of the Mother.

4. The affidavit of Ms Dooley, and I accept its content as fact, confirms that the Father twice failed to attend successively arranged interviews scheduled a long time apart for the purpose of obtaining the psychiatric assessment and report.  That put the Father in an invidious position, as he himself recognised at the outset of the proceedings, by suggesting that he was now in a position, having resumed some employment to immediately attend and undertake a psychiatric assessment and examination.  In the result, the Father recognised the merits of Orders being made that would not advance this matter until he has attended upon a psychiatrist for the purpose of an assessment and report, and I will say more about the Orders shortly.

5. The Father had initially suggested that there ought be parenting Orders that would see, in relation to E, born … June 2003, who is now nine years of age, essentially a movement towards shared care of E on something like a nine days, six days per fortnight split between the Mother and the Father.  The Father recognised initially that in accordance with recommendations made most recently by Mr S in a report attached to his affidavit filed 17 December 2012, that there would be a need first for a reintroduction and the like by way of supervised time.

6. The Mother’s position at the outset of the trial, at least as evidenced in her Case Information Document, was that there should be Orders for E to live with her and for her to have sole parental responsibility; and whilst her Case Information Document indicated that she would support an Order for supervised time, in light of the most recent report of Mr S, which was received subsequent to that Case Information Document, the Mother altered her position, essentially to seek Orders that there be no time with the Father.  In the result, in the course of exchanges and following the oral evidence given by Mr S yesterday, the Mother has altered her position to support the Orders which I will shortly discuss.

7. I do not intend to detail the background of this matter fully suffice to note that the parties commenced living together in 1993 when the Mother was about 16 or 17 years of age, and they finally separated on 19 March 2008.  In about 2002 they had a period of separation and that was the beginning of a series of domestic violence or protection orders being obtained.  There were three children of the relationship, namely J, born in July 1994, who is thus now 18 years of age; W, born in November 1995, who is thus now 17 years of age; and as I have mentioned, the subject child E, born in June 2003, who is now nine years of age.

8. Without detailing the complete history, it is obvious from the history recorded in both of the family reports and the history recorded in the report of Dr M that subsequent to separation, the relationship between the parents has caused significant dysfunction in terms of the children’s living arrangements.  Again, without detailing all matters, there have been movements back and forth between the Father’s household and the Mother’s household by J and W, although E, it seems, has always remained in the care of his Mother, save and except for the period when the Father unilaterally and without the Mother’s consent removed E to the Town H area, necessitating court proceedings for his return.

9. There have been numerous court proceedings in the period since the parties’ separation.  Numerous Orders have been made and the court proceedings have included domestic violence proceedings and, in the Federal Magistrates Court, the location and recovery Order referred to.  The parties have over time each filed notices of child abuse.  There has been departmental involvement and the case generally is marked by the extent of dispute between the parents and the extent to which that dispute has imposed itself upon the lives of the three boys.

10. It would seem that at this point obviously, J being an adult, there is no jurisdiction to make, let alone utility served by, any orders in relation to him, and likewise W is soon to be an adult.  One only needs to read the family reports in this matter to see that what is evidenced in W so far as his relationship or lack of relationship or regard for his Mother is concerned, heralds concerning possibilities for E in the future if these parents continue in the path they have now been on for some years.

11. The consequence of the Father’s failure to obtain or to attend for psychiatric assessment left the Court with a significant gap in evidence in terms of the Court being armed to make orders in the best interests of E. It having been ordered that the Father attend for psychiatric assessment, the Court was left with the deficit not only of the lack of that evidence but to speculate as to why the Father would choose not to comply with Orders of the court in that respect, and the concerted efforts by the Independent Children’s Lawyer to accommodate his repeated failures in that respect.

12. In the result of this case, at one point at least it was the Mother’s contention that enough is enough, in effect, and that the Court should make final orders and bring an end to these proceedings and that such end should entail no orders being made for time between E and his Father and only an order for telephone communication. I can well understand the Mother’s position in this respect when one has regard to the history of the matter and as I particularly refer to, what has transpired with respect to W.

13. One has to wonder about the Father’s motivation or bona fides in seeking parenting orders against the background of what I have discussed in terms of his failure to comply with Orders designed to give him a trial and Orders designed to give him the opportunity to have expert medical assessments funded by the public purse, at that instance, to facilitate him being equipped to conduct these proceedings.

14. In the result, however, as was confirmed with Mr S during the course of his oral evidence, the question is what’s in E’s best interests.  The essential question for Mr S, as it is for the court, is whether it is in E’s best interests to bring an end to the proceedings on the preliminary basis suggested by the Mother, or whether there ought be an opportunity for the Father to demonstrate some kind of commitment to the proceedings and to E by undertaking the steps he needs to undertake so that a court might consider further parenting orders in relation to further time as between the Father and E.

15. In the result, a draft set of orders which I will admit and mark as exhibit 1 was provided to me this morning by counsel for the Independent Children’s Lawyer.  Those orders, as amended by me in handwriting, are essentially agreed as between all parties as reflecting E’s best interests.  The only remaining dispute concerns the question of telephone communication, which I will deal with shortly.

16. In terms of the orders, it will now be seen that the Mother, having heard Mr S’s evidence, has moved from the position of seeking the final orders referred to, which would see there being no order for actual face to face time between the Father and E, to a position of allowing the Father the opportunity to demonstrate that he will, by funding himself a psychiatric assessment and report, and by the filing of a further application, show his commitment and motivation in E’s best interests to furthering his relationship with E.

17. One complication in relation to these proceedings has been that the matter was designated a Magellan matter because of disclosures made by E some two years ago concerning what, on their face, were disclosures as to inappropriate conduct by the Father of a sexual kind with E.  The Father’s recent affidavit contains his denial of ever acting inappropriately with E and in the result, the Mother herself did not urge the court to make any finding of unacceptable risk.  That is, it would seem that the Mother accepted the position that following the investigation of the matter by the department her own assessment is that E’s disclosures must be sourced in something other than an actual recounting by E of actual events.  That is to the Mother’s great credit, in circumstances where this case has been littered with allegation and counter allegation and she has been subjected to allegations of a most unfortunate and, I suspect, unfair kind by the Father and his sharing of his negative views and perceptions of her with the boys.

18. In particular, it is clear from the most recent family report that E was disclosing, whilst on the one hand positive things about his Father, things such as the Father telling him to tell his Mother that she is “a whore.”  It is breathtaking that a parent would not see the potential damage to a child of being informed of views that challenge the very identity of the child, given that the views are expressed in relation to another loved parent.

19. However, those will be matters potentially for another day if this matter ever proceeds to a further trial.  So far as the disclosures of E are concerned, Mr S’s oral evidence dealt, in part, with those.  Mr S observed that this is a high conflict matter, as it surely is.  He observed that there was never a disclosure or statement by the older boys implicating the Father in any kind of similar conduct and it did not seem that E had ever demonstrated, by way of sexualised behaviour or in any other respect, what might be expected to be the result if E was reporting his actual experience.

20. The statements made by E themselves are somewhat incongruous or improbable, in terms of being reliable statements implicating the Father in such conduct as occurring “every night.”  I am satisfied, given the Mother’s own considered position, and after all she is the one who E has always lived with and who has the closest relationship with E, that the Mother’s assessment mirrors a sensible and reasonable assessment of where those alleged disclosures actually sit in terms of reliability.

21. I am satisfied that the court would not and ought not make a finding of unacceptable risk, based simply upon those disclosures in the context of this case.  The Mother has indicated her agreement via her counsel, with the matter no longer being classified as a Magellan matter and the draft orders with which she agrees mirror her position in that respect.

22. The balance to be struck, which is reflected in the orders referred to, is that there ought be final orders in this case if the Father continues on the path he has been on of failing to comply with orders of the court, so far as proceedings are concerned and most fundamentally with obtaining an expert psychiatric report.  Thus, the orders as framed reflect that they will be final orders, so far as time and communication is concerned, unless and until the Father complies with the obtaining of the psychiatric assessment and the Father activating a court to again consider parenting orders, so far as time and communication with E is concerned.

23. I make it clear in these reasons, that whilst expressed as final orders in that context it must be understood that should the Father comply with the terms of the orders in terms of timing and funding of the psychiatric assessment and the filing of a further application he ought not face any contention to the effect consistent with authorities such as Rice & Asplund that he must demonstrate a substantial or material change in circumstances to reactivate parenting proceedings.

24. It is acknowledged by the Mother and by the Independent Children’s Lawyer that that is to be the effect of the orders and they would not be in a position, if the Father does comply and brings a further application, of agitating for such a contention and nor should any court read into the orders or my reasons any implication that, in the face of final orders, the Father is somehow precluded from advancing the application contemplated by the orders if he complies.

25. The reason the orders are expressed as being made on a final basis is to allow for the distinct prospect that the Father will fail to meet the conditions, and, therefore, leave the parties, and in particular E, in some kind of limbo if there otherwise were no final orders in the case. 

26. The remaining issue, about which the parties could not agree, was the extent to which telephone contact should occur between now and any further consideration by a court.

27. It is agreed that E has and will maintain a mobile telephone and can be called on that number, which has been provided to the Father.  It is agreed that the telephone contact should take place on a Tuesday, with contact to be made at some time between 5 and 5.30 pm and the duration of the calls will, effectively, be determined by E himself.  The issue is as to whether the telephone calls should be weekly or in alternate weeks and, more particularly, the Father now agrees to orders which would ensure that W is not involved in the telephone calls.

1. The Father confirmed to me that he will consent to an order by way of injunction restraining him from providing W with the telephone number and will likewise consent to an order restraining the Father himself from sending text messages to the mobile phone number and agrees that the provision to him of that mobile number is limited for the purpose of the telephone time.

2. It is unsurprising, when one reads the most recent report attached to Mr S’s affidavit, filed 17 December 2012, that the Mother would have concerns about the quality of the telephone communication that has been taking place between the Father and E to this point.  At paragraph 65 of his report, on this topic, Mr S records E saying:

   He initially offers that the father-son phone calls are “good” before describing some “yelling” and/or “swearing” by [W] and/or [the Father] and described comments such as “They say I should live with them, just [W] says.”  [E] reveals that he tends to manage phone calls by complaining of being tired and/or sick.

3. I note also that at paragraph 66 E recorded with Mr S, at least the historical information in relation to his Father:

   While his father does not say a great deal to him about his mother while “He used to tell me to tell mum that she’s a whore.” 

4. Hopefully that is a reflection of conduct that is not continued by the father in terms of any communication he has with E.  However, if it remains a feature of communication between the father and E in the future, no doubt that will become self-evident in any further proceedings that take place in a court concerning parenting orders.

5. In the result I am satisfied that with the injunctions placed upon the Father in terms of not allowing W the telephone number or participation in the telephone calls, with the Father hopefully having some capacity to digest E’s concerns about what is spoken of so far as the telephone calls are concerned, that against that background it is reasonable that the Father have telephone time with E on a weekly, rather than alternate weekly basis.

6. I am focused, of course, upon what is in the best interests of E.  It is clear in the second report that despite - and, indeed, it was clear in the first report by Mr S – that despite all the negatives E does seem to seek to have some relationship with his Father, albeit within conditions and constraints that he feels are necessary protective measures.

7. It is unsurprising that E would feel pressured by statements by anybody on the Father’s side of the equation, whether it be W or the Father himself, urging him to live with the Father against the background that it is readily apparent from both of the family reports that E has reacted badly to the experience of being removed from his Mother’s care previously by the Father, leading to the recovery proceedings and orders made restoring him to the position of being in his Mother’s care.

8. The Father needs to understand that E’s sense of security and stability is apparently sourced in remaining living with his Mother.  Whilst the evidence in the case did not get as far as the introduction of subpoenaed material, there was a submission by the Independent Children’s Lawyer which I accept that subpoenaed material would show that E has made pleasing progress in terms of his schooling and shows indications of his general stability in his current circumstances.

9. For a nine year old boy, and, indeed, for any child, stability is a very important feature of their wellbeing and interests.  The Father needs to understand that it is disturbing to E, it would seem, that he is constantly facing, by such statements as referred to, the prospect that that stability is going to be fundamentally challenged.  It needs to be managed in a child focused way.  Likewise, the Father needs to understand that the quality and success of telephone communication inherently depends upon the Father remaining child focused in terms of the nature of those discussions, that is, that if it is confined to matters of what is happening on a day-to-day basis at school and sporting activities and the like, and focuses on positives, the communication is likely to be successful.

10. One does not have to be an expert in child behaviour to realise that if the conversations descend into challenges about where E lives or challenges about his perception of his own Mother, the communication is unlikely to be successful from E’s point of view, no matter how gratifying it might feel for the Father to have the opportunity to make negative comments about the Mother.

11. The feature that the matter is no longer designated a Magellan matter, allows the proceedings or any further proceedings to be heard and determined in the Federal Magistrates Court where they were originally brought.  The benefit of any further proceedings being in the Federal Magistrates Court, apart from anything else, are that that court is likely to be able to deal with any further interim or final orders application, in a more timely way than this court, but more fundamentally within the protocols between the two courts this case, no longer being a Magellan matter, ought not be a case heard and determined in this Court if further application is made.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 February 2013.

Associate:   

Date:  8 February 2013