Horton and Horton

[2007] FamCA 116

FAMILY COURT OF AUSTRALIA

HORTON & HORTON [2007] FamCA 116

FAMILY LAW – CHILDREN – final orders in place that the child live with the husband – child returned to live with the wife – interim application to suspend orders – whether the child should be ordered to spend time with the wife – child’s wishes not to see the wife – likelihood of any order to spend time with the wife not being complied with – who should pay for the airfare – orders partially suspended – interim order that the child spend holiday time with the wife – interim order that the child contact the wife in writing if the child is not intending to spend time with the wife.

APPLICANT: MR HORTON

RESPONDENT: MRS HORTON

FILE NUMBER: (P)MLF 8005 of 1997

DATE DELIVERED: 23 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bryant CJ

HEARING DATE: 23 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Agostinelli

SOLICITOR FOR THE RESPONDENT: Croydons Solicitors

COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER:

Ms Spehr

INDEPENDENT CHILDREN’S LAWYER:              Legal Aid Commission of NSW

Orders

1. That within 14 days, the husband file and serve on the wife’s solicitor and the independent children’s lawyer an application for final orders, specifying the orders he seeks on a final basis.

2. That the application when filed be consolidated with these proceedings and not allocated a case assessment conference.

3. That orders 2,3,6,11,16 and 19 of the orders made by Bennett J on 31 August 2006 be suspended until further order.

4. That the child M, born in November 1995, spend time with the wife for one-half of each school holiday period in Adelaide as agreed between the parties, such agreement to be in writing between the husband and the wife’s solicitors.

5. That M write to the wife no later than 21 days prior to the commencement of each of the school holidays, to tell her whether or not she will be coming to Adelaide, and enclosing a copy of any relevant school reports.

6. If M chooses to have contact then the wife be responsible for providing her airfare from regional NSW to Adelaide, and the husband be responsible for paying her airfare from Adelaide to regional NSW on return.

7. That the husband be restrained by injunction from communicating with the wife other than for the purpose of making arrangements regarding contact between the wife and M or informing her of matters relevant to the health, education and welfare of M.

8. The husband keep the wife advised by either contact with the wife or her solicitor of any changes in the school she is attending, and provide copies of all school reports regarding her progress.

9. That M be at liberty to contact the wife by any means that the wife chooses to provide.

10. Pursuant to section 69ZW of the Family Law Act 1975 as amended, the Department of Community Services should provide the court with the following documents or information:

    (a)copies of any notifications regarding allegations of abuse of the said child;

    (b)       any assessments or investigation into such allegations of abuse;

    (c)       the outcome or findings of any such assessments or investigations; and

    (d)copies of any reports received by the department in the course of investigating such notifications.

11. Pursuant to section 91B of the Family Law Act 1975 as amended, the minister for the Department of Community Services be invited to intervene in these proceedings.

12. That the application and the response and the husband's form 1 application, when filed, be adjourned to a pre-trial conference on 1 June 2007 at 9.30 am.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 8005 of 1997

MR HORTON

Applicant

And

MRS HORTON

Respondent

And

INDEPDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. The matter before me concerns a child, M, born in November 1995, who is now 11 years old.  She is also known by the nickname by her father of D.

2. Although - as it will emerge from these reasons - what I am dealing with is an interim application and the issues are fairly narrow, the context provided by the background needs to be understood; and for that reason, it is necessary for me to detail some of the background.

3. The matter was the subject of a final hearing before Bennett J in the Albury circuit between 21 and 31 August 2006.  Her Honour delivered reasons for judgment on 27 October 2006.  The reasons comprise 128 pages and 309 paragraphs.  They reflect the complex issues before Bennett J which led her to make the orders she made on 31 August 2006.  Those orders will appear in my judgment, but I don't intend to go through them all now.  The main effect of the orders, however, was that M, who had been previously living with her father, was placed into her mother's care and a residence order in favour of her mother was made, and there were some orders which were for contact but no contact was to take place for a specified period.

4. It is difficult to summarise in short compass the history and background to the proceedings, but I will try to do justice to the reasons for judgment of Bennett J, albeit in summary form. 

5. Her Honour indicated in paragraph 3 what the wife's case was:  that is, that she wanted M to live with her in Adelaide, and by the end of the evidence she was seeking that there be a moratorium of six months during which time the husband spend no time with M, followed by communication and time on a strictly supervised basis.  M had been living with her father prior to that time in a small NSW town, and as a result of Bennett J's orders moved to live with her mother in Adelaide. 

6. A great deal of the judgment involved Bennett J making findings of fact about the many allegations raised by both parties, but particularly by the husband.  It does no justice to the detailed findings but is accurate to say that her Honour found the husband not to be a credible witness and declined to accept his evidence unless corroborated or uncontentious.

7. It is fair to the husband I think to say that he rejects the findings of Bennett J both in relation to findings of fact and conclusions that her Honour ultimately came to.  He also rejects the findings and conclusions of the single expert, Dr W, by whose evidence her Honour was influenced.  He filed a notice of appeal which, for various reasons, he did not prosecute; and he appeared before Kay J on 15 December 2006 seeking to have his notice of appeal reinstated.  His Honour did reinstate the appeal, but noted and advised the husband that in view of the fact that the child M was by then living with him, that he might better pursue a course designed to revisit the orders of Bennett J rather than to appeal against them.

8. The husband is 66 years old.  He is a farmer and previously worked as a shearer.  At the time of the hearing before Bennett J he was in receipt of an aged pension and an income-tested pension for M.  He was previously married.  Following separation in January 2005 to the time of the hearing before Bennett J, M had been living with the husband at a small NSW town.  The wife was born in the Philippines and is 43.  She arrived in Australia in 1992.  The husband and wife were married in September 1992.  This was her first marriage.

9. At the time of the hearing before Bennett J, the wife was living in Adelaide in accommodation rented from an organisation assisting people affected by domestic violence.  She has been diagnosed as having bipolar disorder.  Between separation and the time of the hearing, the only time the wife had spent with M was for assessment interviews for the report of the single expert child psychiatrist, Dr W. 

10. The many serious allegations made by the husband were not found to be proved on the balance of probabilities by her Honour.  The allegations themselves and the husband’s behaviour, particularly confronting M with allegations that he was making against the wife - especially an allegation that M’s uncle had anal sex with her mother in the home in which at that stage M and the husband were, and alleged abuse of M - were of significant concern to her Honour.  She observed at paragraph 145 of her reasons that she was satisfied that the husband had introduced M to information and imagery about adult sexual matters which were entirely inappropriate for her age, and that he had no remorse of insight. 

11. Dr W described the harm from which M should be protected in paragraph 146:

    It seems to me that the most glaring problem is that [[M]] has simply been exposed to a huge array of sexualised material directed towards her mother, directed towards others, constant references being brought up probably quite inappropriate to situations which run the risk of derailing her own psycho sexual development in a way which is difficult to predict except that there is a high likelihood it will be derailed. 

12. In paragraph 171 her Honour sets out Dr W’s concern about what he thought were the husband's apparently paranoid thought processes and her Honour's concern for the future of M into adolescence if she were with him.  At paragraph 179 her Honour sets out Dr W expressed opinion in relation to the impact on M of having been given certain material by the husband:

    She has not just been exposed to it, she has also been invited or some how or another added a commentary to it and colluded and being and there has been some collusion between she and her father in posting to her mother or her father has coerced her or whatever it happens to be. 
    

    If I had been provided with that at the time of the assessment
    I would have called the Department of Community Services and suggested to them that this child is in danger. 

    
    

    I have a growing sense of concern here at the end of this camera the more that this is discussed ……….. and this is laid out in front of [the father] about her welfare from now on.  To be perfectly blunt, concerned what might be said to her tonight. 
    And speaking as a psychiatrist that has a statutory responsibility
    I am frankly a little bit perplexed about what to do because this puts me in a very difficult position, I mean that I feel that at this point I should tell the Department of Community Services that not only does the child appear to have been exposed to these sorts of things but that the father’s conduct in this court case, the materials that he provided to the court and apparently thinking that somehow vindicates his position as a part of his case.  The whole thing leaves me very concerned that if he thinks that this case is not gong his way that this child may suffer as a result of that. 
    I am not quite sure what to do about that situation, I don’t know where the child is located I don’t know whether she is in safe hands at the moment.  I am not sure what the courts position is on this, but it seems to me something which can’t simply be left in the air.  Ordinarily I wouldn’t voice this in front of [the father] but I don’t have too much choice.

    Similar comments are made in paragraph 184 of the reasons. 

13. At the end of his evidence, Dr W was satisfied that his previous concerns about the wife's mental and psychological health were met, and, subject to the court being satisfied that the wife and her brother had not abused M, Dr W recommended that M reside with the wife with immediate effect.  He advised that there be a period of three to six months without spending time or communicating with the husband, and that after that period all time and communication be supervised for a further period of two to three years at a contact centre or similar place.  He opined that any relaxation of the supervision should occur when M was about 13 or 14, and to be preceded by her education in methods of self-protection.

14. Her Honour found among other things that the husband's behaviour directed to the wife and her brother had had a serious and adverse impact on M and amounted to psychological and emotional abuse by him of M.  She was also satisfied that the husband's alienation of M from the wife was psychological abuse.  She endorsed Dr W’s view of the husband's household as a "highly sexualised home environment, and an environment that knows if not models humiliation and debasement".

15. It is important, in my view, in considering her Honour's findings, to note that she spent some time discussing M's views.  Dr W had indicated that M wished to remain residing with her father and didn't want to see her mother in South Australia.  Dr W opined that this view was to some extent, if not to a considerable degree, formed because M had been influenced by her father and her express wishes did not accurately reflect her wishes.  However he noted, and I quote:

    It is not clear to me how clear are her real wishes or how well-informed they actually are, bearing in mind her obvious intelligence.

16. Her Honour accepted Dr W’s assessment of the views expressed by M.  She found that M had no freedom to say that she would like to see the wife or express a view which differed from the husband, and her Honour did not believe that M's views were a reliable indication of her true feelings, and said at paragraph 218:

    Even if they were, the environment in and the basis upon which they have been formed are so toxic and contrary to her normal healthy psychological development, that I would not have regard to them. 

    She did not give M's expressed views any significant weight.

17. Her Honour made findings about the relationship between M and her father, and found that the relationship was close but that it was unhealthy.  As to the husband's ability to foster a relationship between the wife and M, her Honour found at paragraph 232 that the husband lacked any capacity or ability to foster a positive relationship between M and the wife, and that he had completely failed to meet his obligations in this regard when she had been with him, and she did not see any prospect of him developing the necessary abilities in the future.  Her Honour then concluded that an immediate change of residence of M from her father to her mother was called for.

18. Her Honour detailed in her reasons some of the matters that she anticipated might occur once an order that she was contemplating was made.  She was concerned that M had not contemplated that she might be removed from her father's care, and that she might be alarmed at the sudden change and may be bullying, oppositional and defiant.  However, her Honour found that the wife had access to excellent counselling facilities and had the personal resources to deal with these issues if they arose.

19. At paragraph 293 her Honour in my view presaged the current position when she said:

    I am satisfied there is evidence to support the proposition that [the father] will attempt to defeat the orders which I make by appealing to [M] and, through her, to the wife....I am satisfied that pressure exerted by him to either the wife or [M] will have the potential of destabilising [M’s] happiness within the wife's household which would be contrary to [M’s] psychological wellbeing and development.

    It was those comments which led her Honour to make the orders which prevented there from being physical contact between the husband and M for the period described in the orders.  Her Honour concluded that it would be absolutely contrary to M's best interests for her to remain in the primary significant care of the husband.

20. This proceeding before me commenced on 4 January 2007 when the husband filed an application in a case.  It is supported by two affidavits, one sworn on 22 December 2006 and the other on 5 February 2007.  The husband's first affidavit deposes to the fact that M had been returned to him by the wife in December.  There is nothing more of a factual nature, but he annexes a number of documents including notes of discussions and telephone calls, and copies of draft letters apparently written by the wife to her doctor, and a page of the wife's diary.  The draft letters, if accurate, indicate the difficulties the wife was having with M, whose behaviour was as described clearly manipulative, and the wife sounds desperate.  The diary entries also detail the difficulties. 

21. It is apparent from the husband's annexures - which I have to describe as mostly a rambling monologue with no evidentiary value but which were not objected to - that he facilitated M continuing to have contact with him despite the orders.  It is not for me today on an interim basis without hearing the evidence of the parties to make findings about this matter, but the materials he has filed make it sufficiently clear in my view that there was a great deal of communication between him and M, particularly in the period 13 November until early December, when many phone calls were made, mostly from public phones.  Whilst they appear to have been instigated by M, the charges were reversed.  At least on one occasion, in response to M's concerns, the husband arranged for the police to attend at the wife's home; and on another occasion a bank card was sent to some friends for the purpose of enabling funds to be made available to M.

22. The wife acknowledged that she could not continue to care for M in the face of the continuing contact between her and her father, the continuing allegations about her, and apparent inability to overcome the alienation between her and her daughter. 

23. The orders sought by the husband are set out in annexure 4 to his affidavit sworn on 22 December 2006.  He seeks an order that M reside with him.  He seeks that both parties share equally in any airfares from regional NSW to Adelaide or Adelaide to regional NSW.  He seeks an apprehended violence order, although I point out to him that this court is not in a position to grant such relief.  He seeks an order that the wife be advised of the location of any school that M is attending, with contact phone numbers and addresses.  He seeks the removal of any restriction on either parent to travel in Australia or overseas on holiday, as long as they tell each other.  He seeks an order that M has the right to choose if she wants to go with either party for a holiday in Australia or overseas.  He seeks an order that each parent advise the other of any injuries; an order that no restriction be placed on phone, email or mail contact between the parties and M; and that travel expenses in relation to school holidays be shared equally.

24. The wife filed a response on 5 February 2007 and swore an affidavit which was sworn on 2 February 2007.  It is apparent from her affidavit that as early as 5 September 2006 M had run away from home, and it was only a relatively short time after the orders were made.  She deposes to the fact that the husband telephoned her land line on a number of occasions, and she deposes to continuing difficulties with M.  Between the period October to December, she says that M continued to telephone her father, and her father accepted calls and spoke to her on each occasion.  She continued to inform the wife that the husband was the truthful of the true parents, and smashed a Christmas tree and threw a vase at her.  On another occasion M also smashed the lock off a bedside cabinet and endeavoured to remove the wife's papers.  She took M to the Adelaide Airport on 10 December and put her on a plane back to her father's.

25. The wife seeks in her annexure setting out her orders that the paragraphs of Bennett J's order made on 31 August 2006 which relates to matters pertaining to the residence of M with her be suspended. She seeks that M spend one-half of each school holiday period in Adelaide, as agreed between the parties with her, and that the husband be solely responsible for the costs associated with the travel. She seeks that the husband be restrained by injunction from communicating with the wife, which she through her solicitor changed to say, subject to necessary communications regarding M. She seeks a specific time to communicate with her each Thursday between 8.30 pm and 9.30 pm, with the wife telephoning the child. She seeks an order pursuant to section 69ZW of the Family Law Act, and an order under section 91B, inviting the Minister for the Department of Community Services to intervene in the proceedings.

1. The husband appeared in person.  The wife appeared through her solicitor, Ms (indistinct), by telephone.  Ms Spehr appeared for the independent children's lawyer.  The independent children's lawyer, Ms Wearne, had the opportunity to speak with M and ascertain her views.  M was adamant that she would only contemplate email communication with her wife, and gave those instructions to the independent children's lawyer.  She was strong‑willed about not wishing to see her wife and made allegations about abuse in her mother's care.

2. When the matter commenced it was apparent that the only applications before the court were the husband's form 2 application and response to the form 2.  That is to say, no final application had been made.  This may have been an oversight on the husband's part, but nevertheless the wife and independent children's lawyer have approached the matter on the basis that I was dealing with this on an interim basis. 

3. Given the nature of some of the orders sought and the procedural unfairness that would otherwise occur if this were to be dealt with finally, I explained to the husband that without the consensus of the wife and the independent children's lawyer then they could not proceed as a final hearing.  Thus I am making orders today of an interim nature.

4. The issues that I have to determine are in fact fairly narrow.  The wife agrees to the suspension of various orders about residence, and the husband also agrees with the suspension of those orders, save in relation to one matter to which I will refer.  The wife seeks that no order be made in favour of the husband, although he seeks such an order, and the independent children's lawyer agreed.  The husband seeks that the order made by Bennett J which places the child on the watch list and prevents either party from removing her form the Commonwealth of Australia should be removed, as he wishes to obtain a passport which he wants to have available in case he wishes to take M for a holiday.  That particular application was opposed.

5. Both parties agree that M should spend half the holidays with the wife.  However, there are two crucial issues arising from that.  The husband seeks that the choice of where the contact occurs is to be that of M.  The wife contents that a defined order should be made for the first half of each term and Christmas holiday period.  Secondly, the husband seeks an order sharing the costs of the air travel between Adelaide and Melbourne, and the wife seeks that the husband be responsible.

6. The husband puts no limits on the contact between the wife and M, but contends that the contact should be initiated by M.  The wife agrees but seeks a specific time when she can telephone M each Thursday.  She does not want to give M the phone number, because it would be she believes communicated to the husband, who would harass her.  The wife seeks an order inviting the department to intervene and for a report, and the husband does not oppose those orders.

7. The wife submits that although the contact with M is likely to be problematic, the court should make an order ordering contact because it is in M's best interests for there to be an acknowledgment by the court that she ought to have a meaningful relationship with her mother and a practical means of ensuring that the contact between her and her mother takes place.  The independent children's lawyer supported that position although, after consideration of some of the issues for M, the independent children's lawyer somewhat ameliorated her view.

8. As to whether I should make a positive parenting order in favour of the husband, I am required to regard the best interests of M as the paramount consideration in any decision that I make.  The complexities of the relationships between M and both of her parents make it difficult in this case to determine really what is best for M.  In my view, I should not make an order in favour of the husband on an interim basis. 

9. In considering the best interests of the trial, and to take into account the objects of the Family Law Act in determining the child's best interests, I have to consider the two primary considerations in section 60CC(2) and several additional considerations. The primary considerations in section CC(2) provide for:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

10. On the findings made by Bennett J as recently as August 2006 and the evidence before me today, although I cannot make final findings myself, I could not be satisfied that M will ever be able to have a meaningful relationship with the wife if she lives with the husband; nor could I be satisfied that M will be protected from physical and psychological harm or from being exposed or subjected to abuse, neglect or family violence.  I could thus not find on the evidence before me that it is in the best interests of M to live with the husband, and for that reason I would not make such an order.

11. However, the reality accepted by all concerned is that M will live with the husband, notwithstanding that there are no orders, and that the existing orders made by Bennett J which provide for residence and associated matters to the wife should be suspended.  In view of this, the husband did not in any event press for orders in his favour.  I will, however, make orders for the suspension of the existing orders of Bennett J.

12. As to the other matter raised by the husband in relation to the suspension, I do not propose on an interim basis to discharge the order which prevents either party from taking M from Australia without the consent of the other.  There are several reasons for this.  The first is that from the material in Bennett J's reasons, it may be necessary to consider carefully on a final basis whether such a restriction should be lifted, dealing on a final basis.  Secondly, the husband's evidence was that he did not in any event have any immediate plans to take her away.  He acknowledged that she was doing well at school and didn't want to interfere with her last year of primary schooling.  He indicated that he would like to get a passport and to have it available in case he wanted to take her, but he had no present plans to do so.  For those reasons I do not propose to remove the existing injunctions as they appear in Bennett J's orders.

13. The matter I now turn to, therefore, is the major question, which is how the question of contact should be approached.  None of the parties sought to cross‑examine the other, and the matter proceeded by way of submissions.  The gravamen of the husband's submissions in relation to M is that although he himself acknowledges the importance of her relationship with her mother because he is prepared to agree that there should be contact for half of each holiday period, M should not be forced to go, and the issue of whether she has contact should be left to her.  He contends that the wife's household is one in which M would be subject to both psychological and physical abuse if she was forced to return. 

14. There are two things that I need to say about this submission.  The first is that it is inconsistent with his position that M should spend half holidays with her mother.  But more importantly, it relies upon a set of facts rejected by Bennett J. 

15. As I have indicated, the position of the wife and the independent children's lawyer was that it is important that the relationship was given some credence by the court, and that a practical means of ensuring that contact would take place should be made possible by the making of orders.  In most cases I would agree with that proposition, but I do not think it is so in this case.  The history of this matter is one where M and the husband have aligned and have made allegations about the wife, her lifestyle and household.  The allegations by M include abuse by the wife and have been repeated since the orders of Bennett J.  These allegations were rejected by Bennett J but they continue to be repeated as a basis for M's rejection of the wife. 

16. If I were to make an order which required M to have contact with the wife on each school holidays, given what M has told the independent children's lawyer, that she did not wish to see her mother, I perceive that on each occasion that the orders were to take effect M and the husband would have to give a reason why the orders were not being complied with.  This would be an invitation on each occasion of contact for M and the husband to find reasons why M should not go. 

17. It is inevitable in my view that the history of the allegations previously made would be rehashed and re-presented, to prevent compliance.  I do not think that that would be in the interests of M, and I think it would be counterproductive to the possibility of a continuing relationship with her mother.  I my view, it would be better for M to take some responsibility without needing to find a reason every time for her wishing not to see her mother.  That in my view could simply be achieved by making an order in the broad terms that each party seeks, but by providing that M simply inform her mother whether or not she intends to have contact during the holidays.

18. As to the question of how the airfare should be paid for, I had submissions from each of the parties on this issue.  I am satisfied that it is easier for the husband to pay the fares than the wife, and although I don't have much detail about the financial position of either, the capacity of the husband to travel to Thailand leads me to infer at least that he is in a somewhat better position than the wife. 

19. However, in the circumstances I propose to make an order that each party bears one half of the costs of the airfare.  This may put some financial pressure on the wife, but I do so because it seems to me that if the husband is to pay for every airfare then that is simply another reason why the contact might be opposed in his household.  A sharing of the fares is more likely in this case in my view to promote the contact taking place.  Again, the final reason is that I must take into account the reality of what the child has said to the independent children's lawyer.  I hope that some contact takes place, but I have no great confidence that it will, and therefore I do not see that I am putting the wife under any undue financial pressure in the orders that I am making.

20. I do not propose to make an order that the wife contact M as sought because in my view this will simply be another reason to give M an opportunity to continue the allegations and hostility towards her mother.  Consistent with my views about contact, I don't think it is in her interests or her long-term relationship with her mother for this opportunity to be given at this time.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Bryant

Associate:  

Date:  1 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HORTON & HORTON