Hoover and Hoover

[2009] FamCA 267

FAMILY COURT OF AUSTRALIA

HOOVER & HOOVER [2009] FamCA 267

FAMILY LAW – CHILDREN – best interests of the child – where Court ordered restraint on parent from doing any act or saying anything in the presence of child or permitting any other person to do so in the presence of child that is likely in all the circumstances to offend, insult, humiliate or intimidate another person or group of people because of that person’s or that group’s race, colour or national or ethnic origin – where Court ordered restraints against parent for acts and saying of things which are contrary to certain anti‑vilification provisions at State/Commonwealth discrimination legislation while child is in the parent’s care – where Court ordered restraint of parents from actively encouraging or teaching child to hold any particular political viewpoint of the parent – where Court ordered restraint of parents from taking or permitting child to be taken to rallies or political gatherings with an overt political purpose – where Court ordered restraint of parent accessing internet material promoting Nazism, neo-fascism or websites that advocate racial vilification or which may advocate or support acts which may be in breach of State/Commonwealth discrimination legislation while the child is in their care

Anti-Discrimination Act 1977 (NSW)
Discrimination Act 1991 (ACT)
Family Law Act 1975 (Cth)
Racial Discrimination Act 1975 (Cth)

B v B (1988) 82 ALR 584
M v M (1988) 166 CLR 69
Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Hoover

RESPONDENT: Ms Hoover

FILE NUMBER: CAC 559 of 2009

DATE DELIVERED: 9 April 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 9 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: David Lardner

SOLICITOR FOR THE RESPONDENT: Michael Eley

Orders

IT IS ORDERED THAT:

1. The orders made by me on 22 June 2006, amended under the slip rule on 7 July 2006, in relation to … born on … August 2002 (“the child”) continue to apply with the following additions and variations thereto until further order.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. Each of the parents of the child be and is hereby restrained from doing any act or saying anything in the presence of the child or permitting any other person to do so in the presence of the child that is likely in all the circumstances to offend, insult, humiliate or intimidate another person or group of people because of that person’s or that group’s race, colour or national or ethnic origin.

2. Each of the parents be and is hereby restrained from in the presence of the child or allowing any other person in the presence of the child to incite hatred towards, serious contempt for or serious ridicule of a person or group of persons on the ground of the race or sexuality or transsexuality or HIV/AIDS status or religious belief of that person or members of the group.

3. Each party be and is hereby restrained from taking the child or permitting the child to be taken to rallies or political gatherings that have an overt political purpose.

4. Each party be and is hereby restrained from teaching or actively encouraging the child to take on or hold any political views of that parent. 

5. Each party be and is hereby restrained from denigrating or saying unkind or unpleasant things about the other parent or otherwise criticising the other parent or that parent’s family or partner to or in the presence of the child or permitting any other person to do so in the presence of the child. 

6. (By consent) each party be and is hereby restrained from making or discussing with the child arrangements or activities involving the child during the time the child is with the other parent without first having the consent of the other parent. 

7. The mother be and is hereby restrained from viewing or accessing any websites relating to Nazism, neo-fascism or websites that advocate racial vilification or which may advocate or support acts which may be in breach of the Racial Discrimination Act1975 (Cth), the Discrimination Act1991 (ACT) and the Anti-Discrimination Act 1977 (NSW) while the child is in her care.

8. (By consent) each parent be and is hereby restrained from questioning the child about things said in the other parent’s home or criticising or questioning the child about any statements she may have made to the other parent. 

9. The parents will each make such arrangements as are necessary to involve themselves and the child to the extent that it is considered to be appropriate to do so in the ARCK Program on the basis that they will try, with the assistance of that program, to work together to find the best way in which they can cooperate with the child to maximise the advantage to the child, in her best interests, of the relationship she has with each of her parents.  This will include, but not be restricted by, the consideration by each of the parents about the ways in which they should modify their behaviour so as to maximise the opportunities for the child to have a fulfilling and appropriate childhood and adolescence. 

10. The parents and the child will attend upon a Family Consultant of the Family Court for the purposes of that consultant’s preparing a report in accordance with the Terms of Reference to be submitted by the parents’ lawyers to me in Chambers for settling and reference to the Family Consultant thereafter. 

11. (a)     Otherwise the matter is adjourned to 9 July 2009 at 9:45am unless the matter is restored to my list at an earlier point in accordance with the sub-order following.

    (b)Either party has liberty to apply to restore the matter to my list on 48 hours notice in writing to the other party’s lawyer. 

12. Neither party will do anything to cause further publicity to be given to the mother’s views and beliefs.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 559 of 2009

MR HOOVER

Applicant

And

MS HOOVER

Respondent

REASONS FOR JUDGMENT

[Note: Paragraphs [1] to [7] of this Judgment were delivered by his Honour ex-tempore on 9 April 2009.  Paragraphs [8] to [15] below were delivered as Supplemental Reasons for Judgment contemporaneously.]

1. In this matter, as in any matter relating to children, I am obliged to place their best interests as my primary consideration.[1]  I am obliged to consider under the 2006 Amendments to the Family Law Act 1975 (Cth) the fact that there should be a presumption in favour of equal shared parental responsibility.[2]  That is a difficult matter to evaluate in the context of this matter given that the parents have been enjoying, if that is the word, that situation for some time.  But the present dispute between them would suggest that this is not an appropriate way of proceeding for the future.  As these are interim proceedings, I am entitled to and will not apply that presumption automatically or as a presumption.[3]

   [1] Family Law Act 1975 (Cth) s 60CA.

   [2] Family Law Act 1975 (Cth) s 61DA.

   [3] Family Law Act 1975 (Cth) s 61DA(3).

2. I am obliged ordinarily to consider the question of equal shared time if the presumption applies[4] or substantial and significant time.[5]  Each of the parents at present appears to subscribe to the view that I should continue to apply that principle to the relationship between each of them and the child.  I am at this stage undecided about that, but certainly on an interim basis I would want to see as much of the present arrangement preserved as could be with such safeguards as are necessary. 

   [4] Family Law Act 1975 (Cth) s 65DAA(1).

   [5] Family Law Act 1975 (Cth) s 65DAA(2).

3. The primary considerations[6] I have to take into account in deciding what is in the child’s best interests are, first and foremost, her safety, and that includes her psychological safety, and the fact that she is entitled to the benefit of a meaningful relationship with each of her parents.[7]  The words "benefit" and "meaningful" both need to be properly explored in due course.  A person may have a meaningful relationship but it may be of no benefit.  It is appropriate to consider in some cases that a child may well have a relationship with a parent but the relationship is not a benefit to the child.

   [6] As outlined in Family Law Act 1975 (Cth) s 60CC(2).

   [7] Family Court Act 1975 (Cth) s 60CC(2)(a).

4. At this stage, both parents are agreed that the child benefits from the relationship with the other parent and, therefore, I do not propose to move down that path, certainly on an interim basis.  The matter that exercises me beyond anything else in the primary consideration is the question of what steps I need to put into place to ensure that the child’s safety is safeguarded.  In this regard, the focus is not necessarily her physical safety (no-one is suggesting she is at risk physically from either parent) but whether or not the circumstances in which she might find herself are such as to cause her such distress or psychological ill-being that it should militate against a decision that she spends time or some time or substantial time with either parent.

5. It seems to me in the context of this matter that I need to derive some guidance from the High Court in B v B[8] and M v M,[9] which relate to questions of abuse of children.  I do so by way of analogy, not by way of suggesting that the child at present is the subject of abuse from anyone.  The High Court said that in making orders about children the Court should be certain that it makes orders which do not impose any unacceptable risk on the child.  It is that criterion that I propose to apply in the making of the orders that I do in the sense that I accept that any arrangement which involves the child continuing to see both parents involves the imposition of some risk.  The risk may exist that the child’s mother may inadvertently or directly or intentionally or deliberately expose the child to something which causes her distress or causes her to be upset or causes her to develop in an inappropriate way at some point in the future. That is a risk.

   8 B v B (1988) 82 ALR 584.

6. There are boundaries and bounds that can be placed upon the relationship which may restrict the possibility of that occurring, if not eliminate it.  Similarly, if the child is exposed in circumstances to the fact that either parent is prepared to ensure that any dispute between them is played out in a public arena, this may also have a very significant effect upon the child’s wellbeing.  I propose to ensure that there are limitations placed upon that activity as well.  I am concerned that people are entitled to have views even if they are views that most other people in the community or all other people in the community for that matter regard as being either abhorrent, or in fact something which is contrary to normal reason.  That does not mean that children must necessarily be exposed to those views, nor does it necessarily mean that they should not be exposed to those views.  That is a matter that I need to have some assistance with as to the child’s maturity and ability to cope with the things that may cause her to be the subject of ostracism or ill comment from other people in the community. 

7. That is a matter perhaps for a different day.  But they are the principles upon which I propose to operate in prescribing the orders I do and I will publish those orders later today. 

SUPPLEMENTAL REASONS FOR JUDGMENT

1. These reasons are supplemental to those delivered by me ex-tempore in Court on 9 April 2009.  In addition to the reasons I have previously given and to the principles that I set out in my ex-tempore judgment in this matter I add the following comments in relation to the orders I make and my reasons for making them. 

2. It is important in a country like Australia that espouses free speech that parties should be entitled to hold beliefs, even if those beliefs are contrary to the beliefs of many, if not most, if not all other citizens in that country.  The fact that such beliefs or opinions are abhorrent to many, if not all of, the people in the community exemplifies the principle of free speech.  Nevertheless, free speech is a privilege as well as a right and many jurisdictions, including those of NSW, ACT and the Commonwealth recognise that there are limitations upon what a person may say or do in so far as it impinges upon the rights of other people.  In part, these restrictions are contained in the Discrimination Act 1991 (ACT), the Racial Discrimination Act 1975 (Cth) and the Anti-Discrimination Act 1977 (NSW). These Acts proscribe certain activities done publicly. They preserve the right of people to (presumably) hold the beliefs that are condemned as public acts or carry out acts in private which would in public be otherwise unlawful as that term is defined in some of those Acts or an offence as it is described in other of those Acts.

3. In this matter I do not find it appropriate to follow the forms suggested by the father’s counsel which were directed specifically to matters relating to Nazism or to Adolph Hitler or to some areas of racial supremacy.  I also do not consider it to be appropriate to express injunctions in the somewhat bland and generalised terms of “political beliefs” submitted to me as being appropriate by the mother’s counsel. 

4. In the circumstances until such time as I have before me evidence which suggests how certain activities might impinge upon the best interests of the child I have determined that I should restrain private conduct of which if done publicly would constitute either an unlawful act or an offence under the legislation to which I have previously referred.  This leaves for the judgment of the mother in particular, but of both parents, a determination of whether a specific event falls within the proscriptions of the injunctions that I impose. 

5. I have also determined that it is appropriate that the parents and the child should attend the ARCK Program to try to work together to set to one side for a time their respective rights as individuals in the community or even their rights as parents and to concentrate on how they can best conduct themselves with the child and in relation to the child so as to maximise the benefits to her of their relationships with her and to provide her with opportunities to grow up as a child and an adolescent having the fun and enjoying her life as she should rather than having the possibility of being perhaps condemned or ostracised by other children or other members of the community because of the beliefs of either of her parents. 

6. I recognise that there may be differences of opinion (as indeed there proved to be from the draft minutes of orders submitted by both lawyers) about the effects that the mother’s beliefs and conduct and conversations may have upon the child or indeed the effect that the father’s beliefs and his conduct and conversations may have upon the child.  It is not for the Court to be the arbiter or indeed the arbitrator between the parents about whether one set of beliefs or another is appropriate.  However, the child’s best interests must be the Court’s concern and should be the parents’ concern.  If this means that the parents must moderate or change their behaviour in some way to permit the child’s best interests to prevail then that should be their concern. 

7. I add by way of addendum although it should not be necessary in the light of the fact that this matter is before the Court that it is clearly not in the child’s best interests that the activities of either of her parents should become the subject of comment in the public press or among the child’s friends, relations, interest or peer groups.  I have enjoined the parents in relation to this matter as well. 

8. After the parents have had an attempt at trying to each some form of agreement themselves if the matter is still a question for determination I shall listen to submissions from the mother’s counsel about the so called rule in Rice v Asplund[10] and determine further how the matter might proceed thereafter.  Such a determination, if made subsequently, does not invalidate or render inappropriate the orders I make on an interim basis requiring the parents to attend the ARCK Program. 

   [10] Rice & Asplund (1979) FLC 90-725.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate: 

Date:  9 April 2009

9 M v M (1988) 166 CLR 69.