Hugh and Sawer And Anor (Suspension of Parenting Orders)
[2010] FamCA 949
•6 October 2010
FAMILY COURT OF AUSTRALIA
| HUGH & SAWER AND ANOR (SUSPENSION OF PARENTING ORDERS) | [2010] FamCA 949 |
| FAMILY LAW – CHILDREN – Interim parenting arrangements where children aged 11 years had run away from home – relevant considerations for arrangements for 6 weeks pending child inclusive reportable mediation – least worst outcome for the children in the interim |
| APPLICANT: | Ms Hugh |
| 1st RESPONDENT: | Mr Sawer |
| 2nd RESPONDENT | Ms B |
| INDEPENDENT CHILDREN’S LAWYER | Mr D Walker |
| FILE NUMBER: | LNC | 511 | of | 2008 |
| DATE DELIVERED: | 6 October 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 6 October 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lewis |
| SOLICITOR FOR THE APPLICANT: | Levis Stace & Cooper |
| THE RESPONDENT: | In Person |
| THE SECOND RESPONDENT: | No Appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | David Walker & Co Lawyers |
Orders
IT IS ORDERED THAT:
Until 17 November 2010 the operation of paragraphs 3, 4 and 5 of the Orders made on 24 May 2010 be suspended (but the mother’s sole parental responsibility for the children E born … January 1999 and H born … January 1999 remain in full force and effect).
The children E born … January 1999 and H born … January 1999 spend time with the mother:-
a)from the conclusion of school at school on Wednesday to the commencement of school at school on Thursday commencing on Wednesday 20 October 2010; and
b)such other time as is agreed between the parents and evidenced in writing.
The independent children’s lawyer explain these orders and the operation of these orders to the children.
The further hearing of this matter be adjourned to 17 November 2010 at 10.00 am (“the adjourned date”) when it will be conducted at the Hobart Registry of the Family Court of Australia and by video link between Hobart and Melbourne if necessary. Each party to the proceedings is required to attend Court if they seek to be heard.
That pursuant to section 11F of the Family Law Act 1975 the Child Dispute Section of the Court provide formal mediation services to the parties, to be arranged and notified to the parties by Ms U, Manager of Child Dispute Services in Hobart as soon as practicable and allowing sufficient time for two or more mediation sessions before the adjourned date.
The parties do all acts and things necessary to attend personally and with the children as directed by Ms U for the purpose of mediation.
For the avoidance of doubt, the mediation is not privileged and I DIRECT that it be the subject of a memorandum by the mediator, or such other person as Ms U directs, which should be published and available to the parties and the independent children’s lawyer by not later than 12.00 noon on Friday 12 November 2010. The writer of the memorandum be available for cross examination on the adjourned date.
The reasons for judgment this day be transcribed and, when settled, copies be published to the parties.
The Director of Child Dispute Services invite the paternal grandparents, Mr and Mrs Sawer Senior, to participate in the mediation process.
IT IS REQUESTED that the independent children’s lawyer correspond with the paternal grandparents with a view to vacating or adjourning the directions hearing in their proceedings on 4 November 2010 and, if there is agreement to adjourn that date, such adjournment be effected administratively prior to 29 October 2010 by correspondence from the independent children’s lawyer to my Associate.
AND THE COURT NOTES that the father opposed any orders for the girls to spend any time with the mother prior to 20 October 2010 and would not agree to orders which provided for more extensive time.
IT IS NOTED that publication of this judgment under the pseudonym Hugh & Sawer and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: LNC 511 of 2008
| MS HUGH |
Applicant
and
| MR SAWER |
First Respondent
and
| MS B |
Second Respondent
and
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
(ex tempore)
This matter comes before me, by order of Benjamin J made on 17 September 2010, and concerns the girls, E and H, both born in January 1999.
The parenting orders currently in force in relation the girls were made on 24 May 2010. That Order provides that the girls live with the mother and spend no time with the father or with his partner, Ms B.
However, the girls ran away from the mother’s care on Father’s Day, 5 September 2010. They were subsequently returned to the mother pursuant to a recovery order directed to the state and federal police on 8 September 2010. I note that it is alleged by the mother that the father and Ms B were not sufficiently proactive in complying with the recovery order so execution of it was delayed. Having regard to the affidavit evidence filed by and Ms B, there appears to be some merit in that assertion. Pursuant to my orders, the girls saw the designated family consultant, Ms N, on 15 September 2010. Upon leaving the family consultant’s office, the girls ran away from the mother again and have not since been returned.
Today Mr Lewis appears on behalf of the mother and the mother attends Court. The father appears on his own behalf. There is no appearance by or on behalf of Ms B. She was called at the door of the Court without response. Mr Walker, who is the independent children’s lawyer, also appears.
Initially the registry manager for the Hobart registry was in Court and I will digress for a moment to explain why. The registry manager attended out of concern about communications between the father and the Hobart registry which had been delayed and, I gather, the father had complained. I sought an explanation about the delay in dealing with the father’s correspondence during an adjournment period. I was advised that communications from the father are being redirected within the Court with the consequence that he should anticipate a delay of approximately two to three days before anything would be received by a person who is in a position to respond to him. The redirection was apparently based on some upsetting communication which had emanated from the father. I have ascertained that, as far as the Court is concerned, an email was received on 7 June 2010 by my associate apparently from the father’s email which reads as follows:
“Dear […] Dum asrs and your incompetent narcissistic biased prejudice rectum of a paedophile judge (paedophile is someone who fucks with children)
Do not send any correspondence to me any more, none of the addresses you have will be current from today on.”
I did not require the father to respond or to explain the communication and he did not offer to do so. As the communication may constitute a criminal offence, he is entitled not to incriminate himself. So, as a preliminary matter, the father is on notice that his communications to the court will be delayed and he should conduct his affairs accordingly. The father’s email address is still as it was previously recorded.
The mother’s position today, initially, was that the children should be returned to her care immediately but that she would agree to orders entitling the father to spend time with the children each alternate weekend from after school on Friday to before school on Monday and then each alternate Wednesday from after school to the commencement of school on Thursday. In final submissions, however, and given some further time to take instructions, counsel for the mother submitted that the mother would reluctantly fall into line with the proposal of the independent children’s lawyer that there be week-about time for the girls between her household and the household of the father.
The father states that “there is only one position.” That is, the children remain living with him and there be no orders in relation to the children spending time with their mother. In the father’s final submissions he specifically opposed any week about arrangement for the girls. The father, specifically opposed and would not agree to alternate weekend time being spent between the mother and the girls. He referred to each of those outcomes as being “counter-productive”. He referred to each of those outcomes as likely to see the children “absconding” from the mother’s care.
The father indicated that he would not oppose an order pursuant to which the children spend time with the mother from after school on Wednesday to commencement of school on Thursday providing it starts on 20 October 2010 but not before. He said he would comply with that order.
The father stated that he will encourage the girls to speak to their mother and support them in any desire to see her just as he did with J. Having regard to the history of this matter, it is difficult to see how the Court, the mother or the independent children’s lawyer can have any confidence that time between the girls and the mother will occur under an arrangement left in the hands of the father.
The position of the independent children’s lawyer is that the girls should live with each parent on a week-about basis between now and mid-November 2010.
I have had the benefit of reading the memorandum dated 15 September 2010 by Ms N. I was also taken to specific parts of the memorandum by each of the parties to the proceedings. The memorandum makes no recommendations, which is unusual for an s11F assessment because it is intended to identify issues and to suggest future directions. Nonetheless, I discern that the family consultant sees merit in the children being involved in the decision making process.
The Court is in a position to offer a formal mediation service to the parties sometime later this month. This is not an outcome which the wife through her counsel embraces with any confidence and, if it was a matter of just the adults mediating, I would share her lack of confidence because, as between themselves, the parents are unable to discuss anything. However, the order that I will make will be for a child inclusive mediation which is reportable. It will be an endeavour for the parties and the children to reach some solution to the parenting of the girls on an ongoing basis. The matter can then return to Court after 17 November. 2010.
Accordingly, all of the proposals of the parties were considered in the context of lasting between today and six weeks hence, 17 November, 2010.
There is no dispute about continuing the effect of earlier orders of Benjamin J which suspended the operation of injunctions and a power of arrest directed to the father and his partner, Ms B.
In determining parenting arrangements for the next six weeks, the Court is required to give paramount importance to the best interests of the twin girls. In doing so, I consider the primary and the additional considerations set out in s60CC.
The primary considerations require an assessment of the benefit which can accrue to the children from having a meaningful relationship with both parents. This is particularly significant in this case, as has been stated in a number of judgments in this matter including the judgment delivered on 24 May 2010. It cannot be said that the father’s conduct, over many years, places him in a position where it is easy for the court to easily identify a benefit to the girls of having a meaningful relationship with him. However, it may be unavoidable, particularly if the girls insist on seeing the father, as their two attempts to run away indicate. Factors of their physical safety and the risks of running away from home must figure in the assessment as must the benefit to the girls of having a meaningful relationship with the mother.
A further primary consideration is an assessment of what is needed to protect the twins from physical or psychological harm and from being exposed to abuse, neglect and family violence. The twins have run away from the mother on two occasions in the last 30 days. There is no suggestion in the evidence or otherwise that the father or his partner, Ms B, will discourage the girls from doing so again. I must be concerned that, between now and 17 November 2010, the girls not be put in a position of physical risk by absconding from the mother’s care.
There is no allegation that the children are being physically abused by the mother. The incident of physical abuse by the father of one of the girls, by kicking her, is historical and, according to the expert psychiatrist Dr S, is more telling and serious from a psychological view point than from the physical abuse perspective. In 2008, the family consultant Ms N opined that the father’s treatment of the children was “emotionally abusive”. I don’t know if she has assessed the father since. The uncontradicted expert evidence is that father suffers from a narcissistic personality disorder.
Apart from the primary considerations I take into account the relevant additional considerations.
It appears from the memorandum of Ms N dated 15 September 2010:
that the girls were wanting to stay in the father’s care at least on an alternate week basis.
In particular she reported:
…the girls impressed as being more mature in their presentation than previous interviews but it was also evident that they have age-appropriate limitations in their ability to reason; for example, they stated with marked implacability that they would prefer to live with their father on a week-about basis, “if anything I want to live with him” ([E]), without showing any maturity to discuss any possible compromises on even a short-term basis. This was more marked for [E], who was the leader in their running away, rather than with [H] who acknowledged her love for her mother and who was able to articulate that ‘something was better than nothing’ if the girls were allowed to have regular time with their father. [H] said “I still love her and stuff but it’s annoying that I can’t see Dad”. [H] said that if they were able to see their dad for a day each week “it’d suck but it’d be better than not see him at all”.
The independent children’s lawyer submits that a week-about arrangement would be consistent with the views expressed by the children and recited by the family consultant. The difficulty I have with that submission is that the views of the children were as expressed on 15 September immediately before they ran away from the mother for a second time. I have no evidence of the current views of the girls. However, having been in the father’s household for the last three weeks and given the force of the father’s personality and his previous lack of insight and regard for the emotional well being of any of the children, it is unlikely that the girls’ views would be inconsistent with those of the father. The father says that he opposes, and I infer, will not support, any orders for any time between the mother and the children other than the occasion once a week which starts on 20 October.
Therefore, I have to consider whether I put the girls in a position of potential conflict with the father’s view of life and risk pushing them even further away from the mother between now and the adjourned date. On this interim basis, I am satisfied that, if I make orders contrary to the views of the girls (however such views are reached), history indicates that they will be compelled to running away again.
I take into account the nature of the children’s relationship with each of their parents and other persons. The mother has been the primary carer of the girls. That relationship is now stressed, under strain and in jeopardy. This is largely due to the perception of the children that their mother will not permit them to spend time with the father. There is little or no appreciation by the girls of the father’s potential to undermine a meaningful relationship with the mother and to abuse them emotionally. The family consultant also identifies deficits in the mother’s care of the children and is critical of the mother’s apparent inability to recognise that the girls seek and need to have a relationship with their father. This is also relevant to my deliberations. It would, however, have been useful if the family consultant had indicated how the mother might have responsibly permitted the girls to spend time with the father given his previous conduct and refusal to comply with orders of the Court.
The nature of the girls’ relationship with their father is unsatisfactory. The family consultant opined in 2008 that the girls look after him, to please him, to not upset him, that it is largely a matter of them taking care of him rather than him taking care of them. As was stated in evidence received in early 2010 from Dr S, psychiatrist:-
I think that this man is emotionally abusive, that he requires people to love him, adore him, to be with him. I don’t think a child can withstand those sorts of pressures.
and
- I think this is a man - to use a phrase that became a little bit notorious not so long ago, “If you’re not with me, you’re against me” - applies in a situation such as [the father]. If you go along with his view of the world, then it will be harmonious, but if you raise objections to his view of the world, then there could be problems.
Within the father’s household there is Ms B who is his partner and a practising solicitor. She is a party to the proceedings but fails to attend Court today to participate in the proceedings. I accept the submission of counsel for the wife that Ms B is likely to be helpless in resisting what the father wants in the proceedings. It follows that she is not a moderating influence on the father. Also within the father’s household is the parents’ oldest child, J, and a child of the relationship between the father and Ms B, C. The children have a close relationship with their brother, J, and they seek a close and ongoing relationship with C.
I take into account the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. This is a particularly apposite factor in this case. The mother has sought orders that the children be returned to her care on the basis that they would have regular and frequent time in the father’s household with the father. I take that as some evidence that she will foster a continuing relationship which at least has as a component of it the time that she seeks that he have with the children. My impression of the mother, over numerous court events since March 2009, is that she has never sought to exclude the father per se but has been at a loss to know how to protect the children, or any of them, from the destructive aspects of the father’s behaviour and personality. In 2008 the family consultant opined that the father should seek treatment. There is no evidence that he has done so. He refused to participate in any psychiatric assessment or in the court proceedings and no other suggestions have been forthcoming for the mother.
The father says that he will oppose any order other than the children remaining with him and that they see the mother in two weeks’ time, on 20 October 2010, for one night a week from after school on Wednesday to the commencement of school on Thursday. He says he will do everything he can to support the children wanting to see their mother in the same way as he has supported J wanting to see his mother. I note that J has not seen his mother much at all since he ran way from home and went to live with the father.
The willingness and ability of the father to support any time between the children and the mother is, I think, a very significant factor because one implication of acting against the father’s position at this stage will be to subject the children to even more pressure.
The girls may well prefer to spend a greater amount of time with the mother. They may have been expecting to be returned home today. If I thought that reinstating them in the mother’s home would provide relief or respite for them I would do so. However, I am satisfied that a further recovery order would put them, and the mother, in an intolerable situation and that the girls would be under even more pressure from the father, their brother and his household than they are now. I am also not confident that a further recovery order could have been implemented or, if it was, that the girls would have been permitted to stay with the mother.
It should be made clear to the children the father’s position and that he is not agreeing to any orders which take effect before 20 October and after that he would not countenance more than one night a week. He rejected week about time or the girls spending a weekend with the mother.
I take into account the parenting capacity of the mother and the father. The expert evidence in this matter indicates that both parents have some parenting deficits. The mother has been unable to manage constructively the pressure that the children have been under and their desire to see the father. It would appear that the family report writer is critical of her having taken too passive an approach, not having sought out some education for the children in relation to dealing with their father or some help in her relationship with the children. In her affidavit material the mother says that she has sought counselling in relation to dealing with the girls and her parenting of them, that it is concluded and she has nothing more that she thinks she can get from such counselling. That said she will agree to the children going back to see Dr Y who is a clinician organised by the independent children’s lawyer. I accept the independent children’s lawyer’s description of the mother as appearing to “be paralysed”. It is a great pity that more was not done sooner, or at least today the wife was not able to approach the Court and say what arrangements she had made for the children to see Dr Y.
The father’s parenting capacity is of great concern. He was assessed by a single expert witness, Dr S, in 2004 as having a significant personality disorder. In March 2010 Dr S gave evidence and said that the personality disorder would be unlikely to be amenable to treatment. Dr S made conclusions which I have recited in earlier judgements none of which bode well for the father’s ability to function as a responsible and child focussed parent.
Counsel for the mother submits that the father and Ms B are unable to abide orders of the Court. He says, respectfully, that he is not sure of the father’s ability to abide orders of the Court. He submitted that it is best to adopt a course of least resistance at this stage. I agree with those submissions. I am unable, however, to embrace the outcome which he seeks which is week about care. For reasons I have set out above, I do not consider shared care to be the course of least resistance or the situation in which the children will be relieved from pressure.
The independent children’s lawyer submitted that it will not make any difference whether the children spend one night or five nights with the mother, the father will still put them under pressure. He submitted that the only way for the girls not to be under pressure of conflict between their parents is for the children to have no time at all with their mother between now and 17 November which, he urges, is not a position that he would say is in their best interests. He says that because any order for spending time will result in the children being put under pressure by the father that it is better for them to have a reasonable period of time with the mother and only a short period of time.
Both submissions by the independent children’s lawyer and the mother have considerable merit. Where I am unable to follow them is in the result that they seek. I take into account the deficits in the father’s parenting, the fact that these deficits are not compensated for by Ms B, who is the other adult in the household. Between now and 17 November my priority is to give the children some sanctuary, some peace and to protect them from physical harm which may befall them if they try to run away from the mother’s care.
I take into account the maturity and background and other characteristics of the children and also the ability of the parents to care for the children’s physical and emotional needs. The independent children’s lawyer arranged for the children to see Dr Y, a clinical psychologist. She has prepared a report which is before the Court and dated 26 August 2010. In the penultimate paragraph of her report Dr Y opines:
The information provided to me indicates that [the father] has been diagnosed with a personality disorder with narcissistic traits. It would appear that [the father] can be unpredictable and impulsive in his behaviour and that he is unlikely to consider the needs of others (including his children’s needs) above his own needs. It has been suggested that counselling with [H] and [E] should adopt a “psycho-educational” approach in order to prepare them for spending time with their father. Considering [the father’s] psychological profile and his unpredictable and impulsive nature, it would be an extremely difficult task to prepare [H] and [E] for potential situations that may arise with their father. Furthermore, at present, [H] and [E] both have an idealised image of their father and this would make it difficult for them to accept any potential risk or difficult situations that might arise as a result of spending time with their father. Therefore, in the event that [h] and [E] are legally required to have contact with their father, I recommend they have counselling during this time so that their behavioural and emotional wellbeing can be monitored.
The father in his submission takes issue with the fact that he did not see Dr Y, that Dr Y did not see him with the children and that most of the paragraphs commence with phrases which make it apparent that the doctor has taken into account the version of events advanced by the mother. The mother and the independent children’s lawyer say that the girls should continue to see Dr Y. The father agrees that he will abide any order of the Court that the girls see Dr Y. It goes without saying that Dr Y should see the father providing he meets the costs of any sessions in which he is involved. That gives me some hope in relation to the father’s capacity to follow recommendations which are in the children’s best interests.
This is a very difficult matter. Were it not for the fact that the children run away from the mother I would return them to the mother’s care. She might have some parenting deficits but she is the more capable and child-focused parent and the parent who can best care for the physical and emotional needs of the children. However, there is the risk of the children coming to some harm physically in trying to abscond from her care. There is the fact that the children will be in an extraordinarily conflicted situation if they are subjected to orders with which the father will not permit or encourage them to comply. These factors lead me to conclude that the least worst result in this case at this time is to leave the children in the father’s care and put in place the only orders which the father says can operate between now and 17 November which would see the children spending time with the mother on Wednesday, 20 October 2010.
That seems to me to be a long time for these girls so it is important that they know that the orders which have been made have been the only orders to which the father will agree, including that there be no time before 20 October, 2010. I will require the independent children’s lawyer to explain that to the children by telephone this afternoon to their school. That should if possible be done in the presence of a teacher or the school principal and I say the principal because the independent children’s lawyer has had some significant dealings with the principal of the girls’ school.
It is not appropriate to make an order that the children live with the father. There is no indication that they will be leaving his care or that the wife will seek to remove them from his care. The orders pursuant to which he would have been entitled for a warrant to issue or for warrants to issue for the arrest of Ms B or the father for attending various sporting events of the girls have been suspended by me. Nothing in any order prevents the mother from attending any event, school or otherwise of the children.
The father has indicated that he would like his parents to attend the mediation. The paternal grandparents are applicants in their own right in parallel proceedings to see the children and were taken by them because the father could not, at that stage, see the children. The father could have participated in those proceedings but did not do so. The mother opposes the participation of the paternal grandparents in the mediation and says that it will be a complicating factor. It was submitted on behalf of the mother that the participation of the paternal grandparents will only subject the children to more manipulation. I see that there is some merit in those submissions. However, it seems to me, that there is a competing and stronger argument in having the mediation conducted on a comprehensive basis so as to reduce the opportunity for good work and any resolution to, subsequently, be undone or undermined.
The independent children’s lawyer does not oppose the participation of the paternal grandparents in the mediation. He says that their presence may be of some assistance. He acknowledges that their participation is likely to prolong it, but he does not on balance think that that is a bad thing. I share that view.
The mediation should not be expected to be concluded in one or two sessions. It may go on for more than two sessions. It may, at Ms U’s direction, involve the children being seen by one family consultant and the matter being mediated by another, I do not know, but it is not going to be a short and sharp mediation by any means. It should be treated as the start of a new process.
I acknowledge that a mediation may not be successful if it is arranged in circumstances where the parties do not support the inclusion of some participants. However, having listened carefully to Mr Lewis, I do not regard that as being the mother’s position. Her counsel made submissions and expressed reservations which have some merit. There is nothing to suggest that the mother will not abide the directions of the Court and mediate with the grandparents.
I conclude that it is preferable for the paternal grandparents to participate and be seen by the children to do so lest it be said, and not just by the grandparents, that there were matters that the grandparents wanted to raise which were not raised. I will make an order entitling them to participate and requiring the independent children’s lawyer to investigate whether the mention date for the grandparents’ own proceedings, 4 November 2010, ought to be maintained.
I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 6 October 2010.
Associate:
Date: 26 November 2010
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