Hudson and Hudson

[2008] FamCA 136

FAMILY COURT OF AUSTRALIA

HUDSON & HUDSON [2008] FamCA 136

FAMILY LAW – CHILDREN – Husband in person – Time spent currently reserved – Husband not accepting of report and recommendation of family consultants – Intervention orders – Best interests of children

Family Law Act 1975 (Cth)

APPLICANT: MR HUDSON

RESPONDENT: MRS HUDSON

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 722 of 2006

DATE DELIVERED: 3 MARCH 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 3 MARCH 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR WOOD

SOLICITOR FOR THE RESPONDENT: KELLY & ASSOCIATES FAMILY LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR GRIGG

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: PERRY WATSON

ORDERS

1. THAT paragraphs 2, 3 and 4 of the interim orders made 9 May 2007 be discharged.

2. THAT the wife have the parental responsibility for the care and upbringing of the children of the marriage H born … June 1992, S born … February 1995 and T born … January 1998.

3. THAT the children live with the wife.

4. THAT the question of the time to be spent with or communication between the husband and children be reserved subject to the ongoing wishes of the children and their wellbeing.

5. THAT the Form 1 application of the husband filed 19 November 2004 and all amended applications filed thereafter together with all responses of the wife filed in response be dismissed and the proceedings be removed from the list of cases awaiting hearing.

6. THAT the appointment of the Independent Children’s Lawyer be forthwith discharged.

7. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

8. THAT the extempore reasons for judgment, including the subsequent discussion with counsel for the Independent Children’s Lawyer be transcribed, be placed upon the Court file and be made available to all parties.

9. THAT the application made by counsel for the wife and the further application made by counsel for the Independent Children’s Lawyer for costs of the day be dismissed.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife and the Independent Children’s Lawyer.

IT IS NOTED

A.THAT the report of Mr D, senior clinical psychologist be marked as exhibit “H1” and remain on the Court file (the report being dated 30 August 2007).

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 722 of 2006

MR HUDSON

Applicant

And

MRS HUDSON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Hudson & Hudson and the Independent Children's Lawyer returns pursuant to the orders that I made on 7 September 2007.  On this occasion and as on the earlier occasion, Mr Wood of counsel appears for the wife, Mr Grigg of counsel appears for the Independent Children's Lawyer, and the husband appears in person.  The hearing is before in the Judicial Duty List, on a busy day and with other matters requiring to be heard.  I have delivered these extempore reasons immediately following upon the conclusion of the case and I intend them to be brief but concise and to underline my approach to making orders that are in the best interests of the children.

2. The current orders in this case are made until further order and as to children's issues, they provide for the wife to have the parental responsibility for the care and upbringing of the children, H, born in June 1992; S, born in February 1995, and T, born in January 1998.  Otherwise the orders provide for the children to live with the wife and to spend time with or communicate with the husband on a reserved basis, subject to the wishes of the children and their wellbeing.

3. There has been before the court a number of Family Reports, more recently that of Mr N, Family Consultant, dated 12 October 2006 and various reports from Dr K.  Otherwise there was a report of Ms Y, filed by the husband.  I delivered extempore reasons for judgment on 9 May 2007, incorporating issues from those earlier reports and observations and issues of and concerning the welfare and best interests of the children.  That Judgment was made available to all parties.

4. Subsequently the matter came back before me on 7 September 2007 and I delivered extempore reasons which likewise have been made available to all parties.  On that day I made orders adjourning the hearing to this day and giving to the husband the opportunity to file a further affidavit particularising the orders sought by him and additionally to file a further affidavit of a psychologist or professional witness responding to the report and evidence of Mr N or otherwise for him to put in such further evidence or assessment of himself or other matters of relevance before this court on this day.

5. What has subsequently been provided to the court is a report from Mr D, senior clinical psychologist, dated 30 August 2007.  I understand from the husband's submissions that he had an interview with Mr D at his office and this report was then prepared and subsequently distributed to the husband and provided to the Presiding Magistrate at the Heidelberg Magistrates Court.  It is clear that this report was prepared for a particular purpose.  I have read the report.  I observe in its conclusion that the husband displayed no psychological disorder, save that he is angry and sees the current intervention orders as an invalid by-product of the Family Court proceedings. 

6. The psychologist expressed a preliminary view that it may be that the husband is unaware of the consequences of his behaviour but that time in the police cells demonstrated to him the seriousness of the breach of the intervention order and that he perhaps showed an increased willingness to comply.  In any event, there was no recommendation made for psychological intervention.  This report was not child focused and did not examine the relationship between the husband and the three children of this marriage and that was never its intended purpose.  It is of little assistance to me in the issues now before the court and significantly it highlighted that the husband did not take the opportunity that was provided to him to have further helpful and meaningful evidence before the court on children and parenting issues this day. 

7. With that background, I do not see it necessary to traverse the issue of whether or not the husband properly filed that report in the court.  In summary, it appears as if the husband posted it to the court but with no accompanying affidavit or cover sheet and with the suggestion that the court should have found, located and appropriately filed that document on his file and in compliance with my earlier order.  In any event, today, counsel for the Independent Children's Lawyer or the wife were not aware of the document.  What I have done is to simply accept into evidence and mark as an exhibit and retain on file in the proceedings that report. 

8. There are no other updated affidavits of the husband.  He has provided no other particulars of orders sought and would rely on his past material which I have read at the prior hearings and which in any event are incorporated in my earlier judgments.

9. The issue now before the court is as to whether or not it is in the best interests of the three children of this marriage to make final the interim orders that are contained in paragraphs 2, 3 and 4 of my order of 9 May 2007. 

10. Mr Wood, on behalf of the wife, urges that the orders be made final and that therefore this matter is concluded in this court on the basis of all current applications filed.  Mr Grigg, on behalf of the Independent Children's Lawyer, enthusiastically embraced that application and stressed to the court the need to act in the interests of the children.  His submission is clear and concise and that is that the interim orders should be made final and all extant applications be otherwise dismissed.

11. The husband’s position is that it is in the best interests of the children for them to have meaningful, regular and ongoing time spent with him and no doubt he would consider on an equal apportionment of such time.  I have otherwise considered the material that he filed and I do well understand his reliance upon the professional evidence of Ms Y which is now somewhat dated and does not adequately address the current children and parenting issues.  I prefer and have placed all reliance upon the evidence of Mr N.  Generally I accept the evidence of the wife and in particular her evidence of the inappropriate actions and behaviour of the husband and the impact that it had upon the children, particularly their son.

12. As to the Family Law Act, the overwhelming requirement is the best interests of the child and section 60CA of the Family Law Act 1975 (Cth) demands that a court make a particular order, having regard only to the best interests of the child or in this case of course, the three children of the marriage. How that best interest is determined is by having particular regard to section 60CC, both as to the primary considerations and as to the additional considerations.

13. Both primary considerations are relevant to this case, that is, the issue of a meaningful relationship which children can have with each of their parents, but specifically, and very much to the fore in this case, the need to protect all children from any psychological harm from being exposed to any issue of abuse or neglect.  In that context of course abuse is properly understood by this court to be in its wider and most meaningful form, inclusive of emotional issues and not just physical issues.  In the context of the report of Mr N, the earlier reports before the court and the evidence of the parties, I am particularly alert to the need to provide for and protect these children and promote their best interests.   

14. The additional considerations are set out in sub-section 60CC(3).  Very much the important issues are the views expressed by the children.  These views are accommodated pursuant to sub-paragraph (a) of this sub-section and they are matters of very real significance in this case.  The children are entitled to and have expressed views and they are age appropriate.  I accept the evidence before the court from the wife and professional witnesses of the children’s position.  Mr Grigg has highlighted those views in his submission today. The children are comforted by the current interim orders and certainly the recommendations of Mr N are for the children to be so protected.  I also have regard to the nature of the relationship which the children have with parents as expressed in sub-paragraph (b).  Currently, and no doubt because of the actions of the father and some of his behaviour, the children do not want to see and do not have a relationship with him.  As tragic as that may be it is not as a result of the actions of the children.  I contrast the warm and close relationship that the wife has with the children, and I accept her evidence in that regard, to the wholly fractured relationship of the husband. 

15. Similarly the additional considerations highlight the capacity of the parents and the attitude of the parents and on any view here, the husband has not provided evidence to the court or the evidence before the court is such to highlight that his understanding of parenthood and his attitude to the children is highly inappropriate. 

16. I do not dwell on that matter and I need now include within these extempore reasons for judgment that the husband has seen fit to remove himself from the bar table and to depart the court.  I will continue with these reasons, as they are significant to the children and their wellbeing, and if the husband elects to have no interest in this case, which is after all his case, then that is wholly and solely his decision. 

17. I otherwise, within the context of this case, have particular regard to subparagraphs (c), (d), (j) and (l) of the additional considerations.  They are all of relevance and are certainly explained upon in the significant material before the court and considered within the recommendations of the Independent Children's Lawyer.  My conclusion having carefully considered and evaluated the primary and additional considerations is that it is not in the best interests of the children to order as the husband requested, that is an equal division of time for the children to spend with their parents.  On all of the current facts I have formed a very clear and considered conclusion that it is appropriate to continue to reserve the time periods that the husband may spend with the children subject to their wishes and their wellbeing, physical and emotional circumstances from time to time.  The door is specifically left open to the husband to have full and proper regard to the welfare and best interests of his children and to change his attitude and understanding of their needs.  Again that is a matter largely for him and it is only his ongoing positive action that can resurrect his relationship with his children.

18. Generally, it is provided in section 61D of the Act for parenting orders to extend to both parents.  Sub-section (1) presumes shared parental responsibility and the presumption is, and I apply, that it is in the best interests of a child or children to have equal shared parental responsibility provided to their parents. That was the section of the Act to which the husband made specific reference.  What he did not however do was have regard to sub-section (4) which provides for the rebuttal of that presumption, if the court is satisfied that it is in the best interests of a child or children for their parents to have unequal shared parental responsibility, that is, for one parent to be largely or solely responsible for the care and upbringing of the children.

19. Certainly the submissions of the Independent Children's Lawyer directly highlight that circumstance and their submission is centrally based on the wife in this case having the responsibility for the upbringing of the children.  That is consistent with the orders sought by the wife and is consistent with the recommendation of Mr N and no doubt the earlier recommendations of Dr K, though for the purposes of these orders, I do not intend to rely upon the somewhat out-of-date earlier recommendations of Dr K.

20. The court is also required to consider the time to be spent by the parents, but in this case the husband, with the children.  Again, the test is what is in their best interests. The husband has volunteered to the court that it is now two and a half years since he has seen the children in a direct and meaningful environment.  I well understand the affidavits and the observations of S playing sport, for example, but what is contemplated is parents actively, sensibly and to the benefit of the child or children involving themselves in their upbringing.  That unfortunately is wholly absent from this case.

21. Following the obligations pursuant to the Family Law Act 1975, I specifically have regard to section 65DAA. I consider each of the appropriate sub-sections (1)-(5) thereunder. My conclusion, highlighted by the lack of particular orders now sought by the husband, and his desire to maintain his submissions to the court is that it is not in the children's interest to specifically designate any time, other than a general reservation.

22. The principle remains, it is in the children's interest to know both parents and to spend time with both parents.  However that can only be successful from the children's point of view if both parents want that, both collectively and in this case, individually to be the outcome.

23. This is a case of much aggravation and tension.  It is a case that occupies the State Courts by way of intervention orders, not just where the wife and other members of her family have intervention orders but where professional witnesses have had to obtain intervention orders.  It is a situation that cannot and should not be tolerated but ultimately it is tragic that the children will no doubt grow up to know through their family of all of the past conflict and tension.

24. An issue that was highlighted to the court was the very real benefit to the children from concluding all proceedings and that would have the effect of them excluding the children from ongoing consultation with professionals, psychologists and the like and there is clearly much merit in that position.  The effect of making final orders today will be to bring to an end proceedings.  That clearly will be in the interests of the children.  Ultimately on proper material filed and for a proper and worthy cause - that is, the best interests of the children - the husband could reopen proceedings but it would only be done if and when he would understand that these children are entitled to an upbringing free of drama, tension and aggravation.

25. It is proper to record that the husband is a litigant in person.  With his education and ability to communicate I am satisfied that he does know or should know of the issues in this case.  He is certainly capable of properly representing his interests if he chose to remain involved in the proceedings and to take the opportunity that previously was made available to him to file meaningful documents.  Unfortunately, and for reasons that he knows best the husband is intent on a course of non-cooperation with the wife, professional witnesses and the court.  I am fully satisfied that the husband knew of, but declined to take advantage of, the opportunity to better prepare and present his case.

26. I propose to make the orders in paragraphs 2, 3 and 4 of the 9 May 2007 orders final.  I will discharge the appointment of the Independent Children's Lawyer, though I make this observation in the matter that if proceedings are ever issued again, it would likely be in the best interests of the children to be again represented by the same solicitor who has had the care and carriage of this case and knows all of the background.  To start again would not be in the interests of these children and/or the community with a fresh appointment of an Independent Children's Lawyer who was not savvy to the history of this substantial file.   Particularly having regard to current funding and appointment issues I take this opportunity to record the invaluable assistance given to the court by the Independent Children’s Lawyer.  They have firmly conveyed the views and best interests of the children.  If this matter were to be recommenced then the reappointment of these solicitors would likely be of invaluable assistance to the court and more particularly to the children.

27. I will have these reasons transcribed.  Given that the husband is not here for the conclusion of the reasons, they can be sent to him so he is under no misunderstanding as to the finality of the orders.  There is a notation to the court file that the husband was last at …, Victoria.  That is the address he has disclosed to the court and the document will be sent to that address.

MR GRIGG:  I wonder, your Honour, just before your Honour actually pronounces those orders, there was one matter arising out of your Honour's reasons that I wanted to raise with your Honour, if it is appropriate that I do it right now.

HIS HONOUR:   Yes.

MR GRIGG:  Your Honour described the independent children's lawyer as enthusiastically embracing the position of the wife's counsel.  If your Honour were to ascribe an emotion to either Mr Watson or myself in relation to that, it would rather be resignation or frustration rather than enthusiasm, I think, sir.  I would be asking your Honour if you would consider taking out the word "enthusiastically".

HIS HONOUR:  What I will do is I will have your response incorporated within the reasons for judgment.  I did not intend to ascribe it to you as being "enthusiastically" but I said that in the context of having a committed view as to what is best for the children.

MR GRIGG:  Yes, I understand that, your Honour, but there is a concern - and [the father] will read these reasons - and he should be under no illusion as to what our position is.  But our position is not to enthusiastically embrace an order which means effectively that he will not see them; it is a conclusion that we are forced to by reason of the matters that are before the court.

HIS HONOUR:  All right.  Under summary judgment, I have both the legal right and of course I can correct.  So what is your preference, to either have this conversation transcribed so that your explanation is clearly understood?  Is that perhaps not reasonable?

MR GRIGG:  Yes, I would certainly be very content with that, your Honour.

HIS HONOUR:   All right.  I will make it very clear that what you are saying is that in the interests of the children, "enthusiasm" is the wrong word to ascribe.  You are simply doing what is right for the children.  That conversation can be added on to the end of the reasons for judgment so that is perfectly clear to one and all.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          
Date: 6 March 2008