J and B - [2008] FamCA 184

FAMILY COURT OF AUSTRALIA

J & B

[2008] FamCA 184

FAMILY LAW – CHILDREN – Long-running case – Orders for children to spend time with mother to be conducted in two phases – Findings of psychological abuse of children by mother due to her conviction of the father sexually abusing the children – Allegations of sexual abuse against the father rejected – Mother’s mental health

APPLICANT:

Mr J

RESPONDENT:

Ms B

INDEPENDENT CHILDREN’S LAWYER:

Christine Vachon

FILE NUMBER:

BRF

9948

1999

DATE DELIVERED:

14 February 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

14-18 January 2008,
4-5 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Wendy Pack SC

SOLICITOR FOR THE APPLICANT:

Bill Cooper & Associates

SOLICITOR FOR THE RESPONDENT:

Respondent appeared on her own behalf.

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dr Mark Sayers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Christine Vachon

Orders

The parties are hereby:
(a)Restrained from either discussing or talking with the children (singly or together) or any third party in the likely hearing of the children about these Court proceedings, judgment or Orders; and
(b)Required to remove a child from the presence of any third party who is talking or discussing these Court proceedings, judgment or Orders in the presence of the parent and likely hearing of one of the children (save as otherwise provided for in these Orders).
As and from 10:00 am on 19 March 2007, the children are to live with the Father.
From such time as the children commence to live with the Father pursuant to Order 2 herein the Mother is to spend time with the children by way of Phase 1 and Phase 2 of these Orders as follows:
Phase 1
(a)At a contact centre in northern Queensland capable of providing supervised time between the Mother and the children;
(b)The Father and Mother are required to do all things reasonably required by the nominated contact centre to engage in any intake procedures;
(c)The Father is to pay all the costs of the parties and children as may be charged by the contact centre in respect of any intake procedures and contact sessions between the Mother and the children;
(d)The Mother and the children shall spend supervised time with each other at the contact centre on:
(i)Not more than one (1) weekend each month for six (6) consecutive months to commence no earlier than 18 June 2008,
(ii)On both the Saturday and Sunday of that one (1) weekend each month, and
(iii)At such times on that weekend as may be nominated by the contact centre, but for not less than two (2) consecutive hours and not more than four (4) hours in total on each day of any given weekend;
(e)After consulting with the contact centre as to its availability and prior to the first occasion of supervised time spent by the Mother with the children, the Father will nominate the dates of the one (1) weekend each month for each of the six…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading J and B

Details

AGLC: J and B [2008] FamCA 184
Case: [2008] FamCA 184
Decision Date: 14 February 2008

CaseChat Overview and Summary

This matter came before Bell J of the Family Court of Australia concerning parenting orders for the children of the parties, identified as J and B. The dispute involved the father's application for new parenting orders, which the mother opposed. The court was required to determine whether to hear the father's application, considering issues of estoppel by judgment and the admissibility of certain evidence.

The court was tasked with determining whether an issue estoppel operated to prevent the father's application from being heard, given previous judgments. It also had to consider the admissibility and relevance of academic and social science literature presented by the self-represented mother, and whether a significant change in circumstances warranted a departure from previous findings. The court also had to address the mother's request for a "next of friend" and the appropriate role of any assistant.

Bell J reasoned that while the principle of issue estoppel exists, it should not preclude the hearing of the father's application due to significant changes in circumstances since the previous judgments. These changes included the children being older, more mature, and potentially equipped with defensive skills, the father's re-partnering with a supportive individual, and the mother's mental health. The court also held that academic and social science literature, while informative for the Court of Family generally, could not be admitted as evidence or law in these proceedings, as they were not conducted under the Less Adversarial Trial regime. The court refused the mother's request for a "next of friend" but clarified the role of a McKenzie friend or assistant for clerk-like activities, emphasizing that such an assistant could not provide legal advice.

The court made orders that the children were to live with the Father from 10:00 am on 19 March 2007. The Mother was to spend time with the children through supervised contact at a contact centre for six months, followed by unsupervised time as agreed or as detailed in the orders. The orders also included provisions regarding communication between the Mother and children, financial contributions towards counselling and accommodation, decision-making responsibilities for the children's welfare, and information sharing between the parents. Furthermore, neither party was permitted to file an application concerning parenting orders for at least twelve months without leave of the Court.

Orders

Orders of the court

The parties are hereby:

(a) Restrained from either discussing or talking with the children (singly or together) or any third party in the likely hearing of the children about these Court proceedings, judgment or Orders; and

(b) Required to remove a child from the presence of any third party who is talking or discussing these Court proceedings, judgment or Orders in the presence of the parent and likely hearing of one of the children (save as otherwise provided for in these Orders).

As and from 10:00 am on 19 March 2007, the children are to live with the Father.

From such time as the children commence to live with the Father pursuant to Order 2 herein the Mother is to spend time with the children by way of Phase 1 and Phase 2 of these Orders as follows:

Phase 1

(a) At a contact centre in northern Queensland capable of providing supervised time between the Mother and the children;

(b) The Father and Mother are required to do all things reasonably required by the nominated contact centre to engage in any intake procedures;

(c) The Father is to pay all the costs of the parties and children as may be charged by the contact centre in respect of any intake procedures and contact sessions between the Mother and the children;

(d) The Mother and the children shall spend supervised time with each other at the contact centre on:

(i) Not more than one (1) weekend each month for six (6) consecutive months to commence no earlier than 18 June 2008,

(ii) On both the Saturday and Sunday of that one (1) weekend each month, and

(iii) At such times on that weekend as may be nominated by the contact centre, but for not less than two (2) consecutive hours and not more than four (4) hours in total on each day of any given weekend;

(e) After consulting with the contact centre as to its availability and prior to the first occasion of supervised time spent by the Mother with the children, the Father will nominate the dates of the one (1) weekend each month for each of the six (6) months and inform both the contact centre and the Mother of those dates in writing within seven (7) days of his consulting the contact centre in that regard;

(f) The Father is to nominate the carrier and pay the air flight tickets for the Mother and provide those tickets, or equivalent means to enable her travel such as e-ticket numbers, to the Mother not less than seven (7) days prior to her travel;

(g) The Father is to nominate and pay for motel accommodation for the Mother for two (2) consecutive nights on each weekend the Mother attends the contact centre to spend supervised time with the children;

(h) The Father is only to nominate a motel that is equivalent to or better than 3-star accommodation in the current RACQ Accommodation Guide.

Phase 2

On the completion of the six (6) months of supervised time spent between the Mother and the children pursuant to Order 3 herein the Mother is to spend unsupervised time with the children at all times as may be agreed between the parties in writing (including e-mail or SMS text) and failing agreement not less than as follows:

(a) At all times as the Father maintains his residence in the northern Queensland area:

(i) On the first Saturday and Sunday of each month from between 9:00 am and 5:00 pm commencing on 3 January 2009;

(ii) From the second Saturday in 2009 and thereafter on the second Saturday of each month, from 9:00 am on Saturday to 5:00 pm on the following day, Sunday;

(iii) The time the Mother is to spend with the children pursuant to Order 4(a)(i)-(iii) herein is suspended during school holiday time;

(iv) For the first half of all end-of-term school holidays (excluding Christmas school holidays) in 2009 and in all odd-numbered years thereafter commencing at 9:00 am on the first day the children are not required to attend school and concluding at 5:00 pm on the second Sunday of the holidays;

(v) For the second half of all end-of-term school holidays (excluding Christmas school holidays) in 2010 and in all even-numbered years thereafter commencing at 9:00 am on the second Monday of the holidays and concluding at 5:00 pm on the day prior to the day the children are required to attend school;

(vi) For the 2009 Christmas school holidays and in all odd-numbered years thereafter commencing at 9:00 am on the first Saturday of the holidays until 5:00 pm on 27 December that year;

(vii) For the 2010 Christmas school holidays and in all even-numbered years thereafter commencing at 9:00 am on 27 December that year until 5:00 pm on the last Sunday of those holidays;

(viii) All changeovers of the children between the Mother and the Father are to occur at a contact centre nominated by the Father, which may include a contact centre in Brisbane at the Father's discretion, with the Father to pay all costs as may be charged by the contact centre to either parent for that service;

(ix) The nominated changeover dates and times are subject to the availability of the contact centre.

(b) At all times after 1 January 2009 when the Father's residence is within 150 km of the Brisbane GPO:

(i) If the Father is resident within 150 km of the Brisbane GPO as at 1 January 2009 then from 3:00 pm on the first Friday in January 2009 until 9:00 am on the following Monday (or Tuesday if Monday is a school holiday, public holiday, or pupil free day) and each alternate Friday thereafter; or

(ii) If the Father becomes resident within 150 km of the Brisbane GPO after 1 January 2009 then the Father is to provide written notice to the Mother of his being so resident within 7 days of his moving to Brisbane, and the Mother is to spend time with the children from 5:00 pm on the first Friday after the service of that notice until 9:00 am on the following Monday (or Tuesday if Monday is a school holiday, public holiday, or pupil free day) and each alternate Friday thereafter;

(iii) The time the Mother is to spend with the children pursuant to Order 8(b)(i)-(ii) herein is suspended during school holiday time;

(vi) For the 2009 Christmas school holidays and in all odd-numbered years thereafter, commencing at 9:00 am on the first Saturday of the holidays until 5:00 pm on 27 December that year;

(vii) For the 2010 Christmas school holidays and in all even-numbered years thereafter, commencing at 9:00 am on 27 December that year until 5:00 pm on the last Sunday of those holidays;

(viii) All changeovers of the children between the Mother and the Father are to occur at the children's school save that if a changeover does not coincide or overlap with the children's hours of attendance at school then the changeover is to occur at a contact centre nominated by the Father with the Father to pay all costs as may be charged by the contact centre to either parent for that service;

(ix) The nominated changeover dates and times are subject to the availability of the contact centre.

As to the Mother's communication with the children other than by spending time with them:

(a) For one (1) month after the date of these Orders, there is to be no communication between the Mother and the children;

(b) For one (1) month from the expiry of the prohibition in Order 5(a) the Father is to facilitate the telephone, e-mail, and written correspondence of the children with the Mother at the request of the children but the Mother is not to initiate any such form of communication with the children;

(c) Thereafter, the Mother and the children are at liberty to communicate with each other in writing, by e-mail, SMS text, or telephone with the Father to use his best endeavours to facilitate any reasonable request of the children in that regard and the Mother to not communicate with the children by telephone, e-mail, SMS text, or writing on more than two (2) occasions each week.

In the event that within six (6) months of the date of these Orders, the Mother consults a registered health care provider (having a Medicare provider number) for the purposes of psychiatric treatment or counselling then on the presentation by her to the Father of all such medical or counselling bills as the Mother may incur during the first six (6) months from the date of these Orders (after all insurance rebates or refunds have been paid) then the Father shall be liable to reimburse the Mother, within thirty (30) days, the difference between the monies paid and the refund received.

For not less than the first six (6) months after the date of these Orders, the Father is to organise and pay for counselling services and support for the children, such services to be sourced from professionals in private practice apart from any school or other counselling support as the children may receive.

The Father is to have sole responsibility for all decisions regarding the children's long-term care, welfare, and development.

Each parent is to have sole responsibility for decision-making regarding the short-term care and welfare of the children whenever the children are in either parent's sole care.

10.

Within fourteen (14) days of the children commencing to live with the Father, the Father is to provide the Mother:

(a) With written notice of the school the children are to attend and its contact details; and

(b) With written notice of the medical practice that the children will routinely attend and its contact details.

11.

On or before 7 January 2009 the Father is to provide the Mother with all necessary written authorities, and in case of doubt these Orders shall serve as all necessary authority, for the Mother to obtain information from and discuss the welfare of the children with all the children's educational and health care service providers.

12.

Within seven (7) days of these Orders:

(a) Each parent is to provide the other with written notice (including e-mail or SMS text) of their postal address and telephone numbers (including mobile telephone numbers) and shall inform the other in writing of any changes to those details within seven (7) days of such change;

(b) The Father is to provide the Mother with written notice (including e-mail or SMS text) of the children's residential address and shall inform the Mother in writing of any changes to those details within seven (7) days of such change.

13.

The Father is to forward to the Mother, within seven (7) days of receiving same and at his expense:

(a) Copies of all school reports, assessments of the children as may be commissioned by the school, school photographs, and school newsletters; and

(b) Copies of all the children's pharmaceutical prescriptions and medical certificates or reports as come into the Father's possession, custody, or control.

14.

For a period of not less than twelve (12) months from the date of these Orders neither party may file any application in respect of parenting orders relevant to the children, whether new orders or variation of these orders, without having first obtained the leave of the Court.

15.

The Independent Children's Lawyer be discharged on the completion of the events in Order 2 herein.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The difficulties raised by the rule established in In the Marriage of Rice and Asplund required a consideration of the circumstances of the case.[12] In accordance with current authority,[13] the matter was not considered as a threshold issue but was considered during the course of argument. For the reasons discussed below, it is apparent that sufficient evidence of a significant change in circumstances has been put before the Court, such that the Applicant Father's application can be heard.[12] (1978) 6 Fam LR 570.[13] In the Marriage of Bennett (1990) 14 Fam LR 485.Estoppel by judgment Despite Justice May's reluctance to find an issue estoppel had been raised in these proceedings at her directions hearing in relation to the judgment of Justice Jerrard by counsel for the Children's Representative, as he then was,[14] the matter was raised by counsel for the Respondent Mother in argument during the instant proceedings as per Justice Lawrie's judgment.[15] Dr Sayers of counsel for the Independent Children's Lawyer, however, disagreed.[16] As the Applicant Father was unrepresented at this stage of the proceedings, he had understandably little to contribute by way of legal argument. Having regard to the intricacy of the legal argument, however, it was strongly suggested to him that he acquire appropriate advice on the point.[17][14] J v B [2003] 435 at [5] per May J.[15] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 20 November 2007) 6.[16] Ibid 40-44.[17] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 21 November 2007) 7. Dr Sayers proposed three alternative avenues for the progression of the matter. First, that notwithstanding that an estoppel is raised in respect of Justice Lawrie's judgment, the facts and evidence at issue in the instant proceedings are sufficiently different that the estoppel does not operate to deny the hearing of this application.[18] These differences included that the children were six years older; could now be equipped with defensive skills and strategies; are at a more mature, advanced developmental stage; that the Applicant Father has re-partnered with a vigilant and impressive partner, fully aware of the previous allegations; and that the mother is mentally unwell. On this basis, Dr Sayers contended that whilst the principle of issue estoppel does exist in this jurisdiction and operate in this case at large, it does not apply in respect of this application because of the changes in circumstances referred to previously.[18] Ibid 5-7. Second, Dr Sayers asserted that estoppel by judgment can apply in this jurisdiction in certain instances, but that for public policy reasons it ought to be found that it does not operate in this case. Authority for that proposition was tendered in the form of In the Marriage of Schorel,[19] where it was stated by the Full Court:Public policy, upon which estoppel is based, does not support the use of that doctrine within this jurisdiction – at least in its jurisdiction in relation to the custody of children. The court had a clear obligation to concern itself with the welfare and interests of the child or children concerned and may not allow that duty to be circumscribed by what are basically technical rules of evidence. [19] (1990) 14 Fam LR 105 at 115 per curiam.

Ratio Decidendi

Legal Principle Established

It is particularly important to address the concern raised in the Respondent Mother's submissions insofar as she has been self-represented for the duration of the final hearing. It is noted, however, that she was represented at the initial hearing of the Applicant Father's fresh application by Mr. Robin Slade Jones of counsel, instructed by Legal Aid Queensland, and that the Respondent Mother chose of her own volition to disengage Legal Aid Queensland and represent herself.Preparation of written submissions Notwithstanding the substantive absence of legal representation during these proceedings, the Respondent Mother's written submissions are couched in references to legal authority. It is admittedly uncommon for self-represented litigants to prepare submissions with such apparent familiarity of the law. It is noted in this regard that the Respondent Mother sought to have a next of friend appointed to assist her in these proceedings.[162] The Bench promptly corrected the Respondent Mother, noting that a McKenzie friend was something different,[163] but that an assistant would be suitable to undertake clerk-like activities. It was emphasised that the assistant was not to provide legal advice or assistance with the law – as contrasted to a McKenzie friend – and it was sought from the Respondent Mother that the candidate she proposed had no legal training or experience whatsoever. The Respondent Mother replied in the negative.[164] Notwithstanding that the request was refused it is apparent that the Respondent Mother has nonetheless acquired the assistance of someone with a passing acquaintance of family law.[162] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 14 January 2008) 30-31.[163] McKenzie v McKenzie [1970] 3 All ER 1034.[164] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 14 January 2008) 30-31. Despite the Respondent Mother's attempt to direct the Court's attention to academic literature generally, and social science literature specifically, these materials fall beyond the scope of material that can be considered. As noted above, these proceedings are not convened under the Less Adversarial Trial regime and, as such, the rules of evidence continue to apply to this hearing. Even if these were LAT proceedings, it is difficult to conceive of circumstances where such literature would weigh upon the mind of a trial Judge in any event. As the cases identified by the Respondent Mother indicate, the materials ought and do inform the decision-making processes of the Family Court at large, but they are neither evidence nor law and cannot be tendered in the course of proceedings. A review of the cases cited shows that the research articles purportedly relied upon were in fact the subject of challenge on appeal on the basis that they were improperly relied upon. These scholarly sources are not possessed with legal authority and cannot serve to support the arguments the Respondent Mother purports to advance.