Hunt and Theophane

[2014] FamCA 524

FAMILY COURT OF AUSTRALIA

HUNT & THEOPHANE [2014] FamCA 524

FAMILY LAW – CHILDREN – Interim – Best interests of the child - Where competing proposals – Where previous interim orders made and a 65L supervisor implemented rather than final orders on the basis both parties were or were soon to be charged with serious criminal offences – Where both parties agree final hearing should be as soon as possible in light of continued delay in the resolution of the father’s criminal proceedings – Where court concerned with what interim orders should pertain in relation to the child in the period up to final hearing – Where final hearing likely to come on for trial in August (in approximately six weeks) – Where father recently withheld the child from the mother – Where time ordered with the father in previous interim orders consequently suspended – Where family report recommendations were varied in updated family report recommending the father spend no time and have no communication with the child until the child attains 18 years – Where court noted such change was recommended on the basis of continued erosion of the mother’s parenting ability and psychiatric health by reasons of the father’s past conduct, including withholding the child – Where mother is in a fragile state of mental health and responds adversely to litigation and the prospect of the father continuing to act as he has in the past –Where the mother is the primary carer of the child since previous interim orders were made – Where court noted it is obliged to act conservatively and protectively of children – Where court found there is sufficient risk between now and the trial of the mother’s mental condition deteriorating such that she would be unable to properly care for the child – Where court noted there is no opportunity to make findings of facts in interim proceedings – Where no material before the court to allay concerns which would inevitably flow from a change in care from the mother to the father and consequently such change in care found not to be in the best interests of the child – Where court ordered time ordered to be spent with the father in previous interim orders continue to be suspended pending trial – Where such order found to be in the best interests of the child.

Family Law Act 1975 (Cth) s60CC

APPLICANT: Ms Hunt

RESPONDENT: Mr Theophane

INDEPENDENT CHILDREN’S LAWYER: Ms S Gray

FILE NUMBER: CSC 1089 of 2007

DATE DELIVERED: 25 June 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 25 June 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Reaston

SOLICITORS FOR THE APPLICANT: O’Reilly Stevens

THE RESPONDENT: In person

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Susan Gray Solicitor

Orders

1. All extant Interim Applications be dismissed.

1. The matter be adjourned to the Registrar’s List on 17 July 2014 at 10:00am for trial directions to ensure that the matter is ready for trial in August 2014 (with an estimated hearing time of 5 days).

1. The Independent Children's Lawyer have liberty to issue such further subpoenae as she sees fit.

NOTATION:

A.Order 5 of the Orders made on 27 May 2014, suspending the time which the child X THEOPHANE born … 2006 would otherwise have spent with the father pursuant of the Orders of Benjamin J made 5 December 2011 remains in force. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hunt & Theophane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: No. CSC 1089 of 2007

Ms Hunt

Applicant

And

Mr Theophane

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before me are competing interim applications for parenting orders in relation to the child of the parties, X Theophane (“the child”) (born in 2006, and therefore presently seven years of age).  It is unnecessary to recite the complex, lengthy and detailed history of the parties’ relationship, and their lives post‑separation.  Up until 2011, the history of the parties is sufficiently summarised by Benjamin J in his reasons for decision delivered on 20 December 2011 in relation to orders made 5 December.  In relation to subsequent events, the parties’ history is well summarised in the final Family Report of Ms B dated 5 May 2014, which was in evidence before me.

2. Pursuant to the orders of Benjamin J, the child was to live with the mother and to spend time with the father on alternate weekends.  His Honour also ordered that there be a section 65L supervisor appointed to assist with compliance with the orders.  That 65L assistance has been made available to the parties since the orders were delivered on 5 December 2011 up until now – quite remarkably, some two and a half years. 

3. The proceeding before Benjamin J was somewhat unusual in that his Honour did not make final orders but, rather, entertained a lengthy three‑day hearing of an interim application before him because both parties were, either then, or likely soon to be, charged with serious criminal offences.  In the mother’s case, the offence for which she was likely to be charged, or had by then been charged with, arose out of her stabbing of the father in September 2011.  Initially, she was charged with attempted murder, but ultimately pleaded guilty to unlawful wounding.  On the father’s side, there were allegations of rape made against him by the mother, which allegations have now translated into, as I understand it, him being committed to stand trial, presumably in the District Court of Queensland, on a number of charges of rape upon the mother. 

4. His Honour contemplated that there may be some lengthy delay between his interim orders and the disposition of the parties’ criminal proceedings – as it has turned out, quite correctly.  Indeed, as I have indicated, the father has only recently been committed to stand trial in relation to those rape charges, and on the last occasion that the matter was before me, the father indicated that there were likely to be submissions made to the DPP to drop the proceedings.  If they are unsuccessful, then there will no doubt need to be a trial, and there may well be an appeal arising from any conviction.

5. Sensibly, in light of the prospect of the continued delay in the resolution of the father’s criminal proceedings, both parties have agreed that rather than continuing to wait for their resolution, the final hearing of the parenting application should now come on as soon as possible.  It has been quite a remarkable situation, where interim orders have lasted for now some two and a half years, and there remains the prospect that they could continue to have operation for another two years.  I agree with the parties that this matter needs to be resolved.

6. In the proceedings before me, the mother seeks a suspension of the orders of Benjamin J insofar as they afforded time being spent by the child with the father.  On the other hand, the father sought that there be a change in care arrangements, and that the child should live with him.  Although his application was silent as to any time which the child might spend with the mother, it appears from his submissions that he was contemplating that there may be some supervised time.

7. Realistically, this matter will likely come on for trial in the August sittings of the Court in Cairns.  Therefore, the period of time which any varied orders will have effect, may be as little as six weeks, and in any event, any interim regime could be revisited at the conclusion of the trial.  Therefore, in a sense, today’s hearing is only about the orders that should pertain in relation to the child for the next six weeks or so.

8. The matter recently became reinvigorated in consequence of two things.  The first is that on 28 April of this year, the father withheld the child from the mother, and refused to return her.  Ultimately, she was returned to the mother on 7 May.  The second is that an updated family report of Ms B was released on 5 May.  In that report, she has varied the recommendations which she had earlier made in previous reports to now, at paragraph 117, recommend that the father’s time and communication with the child be suspended until she attains the age of 18, and that the father be restrained from attempting to spend time with and communicate with the child or requesting any other person to do so.

9. The reasons why Ms B so recommended were distilled at paragraph 100 to 105 of her report:

   100. To conclude, the report writer has reviewed the expansive history of his family law matter and analysed the information from the interviews and subpoenaed material in the current assessment.  The report writer has formed the view that if [the father] is involved in [the child’s] life there is no viable method, resource or parameter which can be ordered by the Court to:

   (a)establish a co-parenting system;

   (b)protect [the mother] from being emotionally, personally or financially exploited by [the father];

   (c)prevent [the father’s] incessant and false allegations;

   (d)adequately improve [the child’s] chances of coping with a deterioration in her mother’s mental health or her father’s exploitive personality;

   (e)anticipate reduction in [the father’s] deception, manipulation or dominance;

   (f)prevent the loss of the maternal family’s capacity to provide support to [the mother] and [the child]; or

   (g)protect [the mother] from likely progression into mental illness.

   101. Prior to the Interim orders of December 2011 which enabled the implementation of the 65L Supervisor and interim directions by the ICL, [the father] had regularly either withheld [the child] (or threatened to), falsely interpreted the Orders, harassed and made recurrent allegations to CSS and QPS and used changeovers to intimidate and make threats. The removal of the 65L Supervisor and the ICL would certainly precipitate a return by [the father] to severe disruptions or threats to disrupt the week to week parenting arrangements. As such actions by [the father] can only be properly intervened in and sanctioned by the Court, this would commit [the mother] indefinitely to constant documentation, evidence collection, engaging legal representation and making Contravention Applications to the Court. [The mother] does not have the emotional resources to do this and requiring her to do so would ensure a severe deterioration in her mental health.

   102. Not only are [the mother’s] emotional resources severely eroded from [the father’s] ongoing allegations, but her family supports are also depleted from what is now years of heightened emotional and financial stress. The maternal grandparents report very high stress levels associated with supporting [the mother, and the children X and Z] in a context of constant litigation, procedural requirements to continue revisiting traumatic family events and defending themselves against allegations from [the father]. Eroding this family base of emotional support introduces instability to [the child’s] circle of caregiving which thus far has been consistent, protective and afforded [the child] and [her sibling] a childhood relatively unaware of the adults’ strain and worry. The maternal grandmother in particular continues to provide daily face to face emotional, social and practical caregiving support.

   Protective parenting arrangements

   103. Making protective parenting arrangements for [the child] is dependent upon maintaining the mental health and parental capacity of [the mother] because [the mother] is her primary attachment and remains [the child’s] closest bond. The report writer’s observation of [the child’s] high functioning, confidence, ease, playfulness and enthusiasm for learning is predominantly a result of [the mother’s] parenting, her involvement in [the child’s] schooling and determination to provide a sanctuary for [the child X] and [the child Z’s] childhood.

   104. The effort by the previous Orders to provide a protective buffer between the parents so that [the mother] could restore her mental health and so that [the father] could have direct guidance for how to maintain respectful and positive co-parenting strategies has not been effective at achieving either objective. During this time, [the father] has maintained regular Court applications that the mother is unfit to parent, and regularly destabilised the parenting arrangements with deception, intrusive involvement in [the child’s] school and false allegations against any adult who he perceives to be obstructing his goals.

   105. If the Court were to cease weekend time each fortnight with [the father], this would not guarantee an end to litigation in other jurisdictions but would end [the mother’s] constant fear of what will happen from week to week within the parenting arrangements. Any such decision to end fortnightly time with [the child] by the Court would likely deeply anger [the father] and may be a trigger by him for retaliation against [the mother] or her family members by way of renewed vigour for litigating and reporting via other avenues.

10. In substance, the reasons why Ms B recommends the change has to do with the continued erosion of the mother’s parenting ability and psychiatric health by reason of the father’s conduct, of which his withholding of the child on 28 April is but the most recent example.

11. Amongst the material relied upon by the mother was a bundle of subpoenaed documents produced from the Queensland Government Mental Health Service.  This relates to an attendance upon the mother on 1 May 2014, at which time the child was still being withheld by the father.  That report, at page 1 of the tender bundle, relevantly reads:

    [Mr Theophane] – who, I interpolate, is the father – has been having regular contact with [the child].  He was expected to return [the child] to [Ms Hunt] – who, I interpolate, is the mother – three days ago but has not done so.  Another court hearing has been applied for to force [the father] to return [the child] to [the mother].  Since she has not returned home, [the mother’s] mental state has deteriorated.  She is not eating or sleeping.  She is agitated most of the time.  She is smoking excessively.  She reports that she is experiencing minor dissociative episodes.

12. I pause to interpolate that at her plea of guilty to the unlawful wounding of the father, it was apparently common ground that she acted, at the time, in the course of a dissociative episode.  The report continues:

    Today, [the mother] entered the room tearful, not making eye contact, expressing anger.  Considerable psychomotor agitation was evident.  [The mother] stated she felt like she was in hell.  We allowed [the mother] to leave the room to go to have a coffee with her mother.  This time gave her the opportunity to calm down.  She re‑entered the room more composed.  Rapport was limited initially be established once [the mother] came back in the room.  Her eye contact improved.  Speech was normal in tone, volume and character.  Mood:  “worst feeling in the world”, subjectively.  Objectively, clearly overwhelmed by anxiety. 

    There was no evidence of formal thought disorder or delusional ideation.  Unclear about dissociative episodes, is finding them confusing, describing brief periods of missing time over the past few days, experiencing thoughts to kill [the father], but clearly denies intent as she knows she wants to be around to care for her children.  Also experiencing intrusive thoughts that [the father] is harming [the child].  [The mother] reassures us that [Mr V] keeps her grounded – as always, asks her about her thoughts.

13. The report continues, however it is unnecessary for the purpose of these reasons to further recite from it. 

14. In her affidavit filed 23 June 2014, the mother detailed her subjective experiences during the time that the child was withheld from her.  They confirm the observations and reports of her mental health practitioner.  What is plain, however, is that the mother is in a fragile state of mental health, that she responds adversely to not only litigation events but, more particularly, the prospect of the father continuing to act as he has in the past, including, for instance, withholding the child as he did on 28 April.

15. The father says that he is willing to undertake not to again withhold the child, or to similarly succumb to some form of undertaking to comply with orders.  However, the mother says that his past history is the best indicator as to his likely future conduct, and as to that, I observe that Ms B, at paragraph 107, noted as follows:

    Throughout the history of this matter, [the father] has repeatedly refused to comply with rules and boundaries established by external individuals or organisations and the Court orders.  For instance, [the father] was banned from the contact centre at Relationships Australia because he would not comply with their rules, nor follow guidance from the staff.  It is the report writer’s view that [the father] is such a dominating and calculating personality that any adult who obstructed his goal of returning [the child] to his care would simply become the next target for allegations and intimidation.

16. The report continued at paragraph 108:

    It would be naïve to anticipate that even with a single annual court-ordered visit that [the father’s] allegations, threats, and desire to destabilise [the mother’s] parenting would also be confined to once a year, given he has clearly stated his campaign in the Family Court will only end when he has at least equal shared care.

17. Based upon those concerns, at paragraph 109, Ms B identified that the most effectively way of eliminating these sorts of behaviours and the consequences which they visit upon the mother is to end the child’s time with the father.  Of course, those recommendations are primarily directed towards the final orders; the question for my present determination is what should be the regime of orders between now and the time when the parties competing proposals for final orders will be tried. 

18. It is well established that the Court is obliged to act conservatively and protectively of children.  It is also not really in contest in these proceedings, on an interim basis at least, that the mother has been the primary carer of the child since the orders of Benjamin J, and therefore, really, the question before me today distils to this:  is there a sufficient risk between now and the trial that the mother’s mental health may deteriorate to a point where her parenting capacity is eroded, such that she would be unable to continue to provide proper care for the child, so that it would be in her best interests for the risks associated with the mother’s mental health to be ameliorated by there being no contact with the father?

19. In saying that I identify that to be the real issue and dispute between the parties, I am mindful of the primary and additional considerations set out in section 60CC of the Family Law Act. However, this is not an instance, given that we are talking about a period of six weeks, where it is necessary to traverse all of those considerations and consider them individually. Rather, it is plainly the situation that if there be a sufficient risk of the mother’s mental condition deteriorating, such that she would be unable to care properly for the child between now and the trial, then that would be the consideration which would have the greatest weight in the circumstances.

20. In interim proceedings such as this there is, unlike in the proceedings before Benjamin J, no opportunity for cross-examination, and therefore the Court cannot make findings of fact.  The court, in essence, is restricted in the way in which it can investigate the parties’ proposals and the material relied upon by them in support of it.  However, in my view, viewed in its totality, the material relied upon by the mother does indeed demonstrate that there is a sufficient magnitude of risk of her mental deterioration that between now and trial.  There is a real prospect that she will lose the capacity to parent or, perhaps even worse, suffer a dissociative episode, during which she may take her own life, or, again attempt to take the life of the father.

1. Identifying that that risk has a sufficient magnitude then raises two options.  The first is the option contended for by the father; namely, that the child should now move into his care pending the trial.  The second is the option contended for by the mother;  namely, that the father’s time with the child should be suspended.  Plainly, in considering whether or not the child should go into the father’s care rather than the mother’s, the Court would be obliged to consider, amongst many things, the likely impact on the child of separation of the kind contemplated by the father from the mother, for that period of time. 

2. In my view, it would be reasonable to expect that the child would suffer great emotional turmoil, in consequence of which her functioning would be reduced, with potential for adverse educational outcomes, and, indeed, potential medium (even long) term psychological consequences for her.  There is nothing in the material which would allay the concerns which would inevitably flow from such a change in care.  In my view, the orders sought by the father would not be in the child’s best interests for the next six weeks. 

3. That then requires me to consider whether or not it would be in the child’s best interests for the time which she has been spending with the father to remain suspended until trial.  I have already identified the risk to the mother’s health which the continued operation of the orders of Benjamin J imperils, and, in my view, that factor is sufficient to justify that the orders of Benjamin J should be continued to be suspended pending the trial.  In my view, such an order is in the best interests of the child for the reasons which I have just identified.

   ORDERS DELIVERED

4. There is no need for any further order.  I will hear the parties, but I propose that the only other order which should be made is that otherwise all extant applications for interim orders be dismissed. 

   RECORDED: NOT TRANSCRIBED

5. I will adjourn the matter for directions before the Registrar at the next trial directions day. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 25 June 2014.

Associate: 

Date:  25 June 2014