JACKSON & RIVER

[2009] FamCA 961

FAMILY COURT OF AUSTRALIA

JACKSON & RIVER [2009] FamCA 961

FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – Trials to be heard back to back but not joined – Trial dates given – To be heard second

FAMILY LAW – CHILDREN – With whom a child spends time – Interim orders – Currently there is no contact with the Father – The Mother’s case is that there be no contact on a final basis – No interim time ordered – Not in the children’s best interest to commence time if it is not to continue

APPLICANT:

Mr Jackson

RESPONDENT Ms River

INDEPENDENT CHILDREN’S LAWYER: Ms Chan, Legal Aid Office

FILE NUMBER: BRC 4756 of 2009

DATE DELIVERED: 7 August 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 7 August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr AP Hodgson, Solicitor of AP Hodgson & Associates appeared for the Applicant Father

SOLICITOR FOR THE RESPONDENT: Ms King, Solicitor of KL King & Associates appeared for the Respondent Mother

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Chan, Solicitor of Legal Aid Office Queensland

Orders

IT IS ORDERED THAT:

1. The matter be designated Magellan.

2. The proceedings be listed for case management review and trial directions to
   10.00 am on 17 November 2009 at the Brisbane Registry of the Family Court.

3. The proceedings be listed for trial for three days commencing 10.00 am on
   14 April 2010 at the Brisbane Registry of the Family Court.

4. Each party be at liberty to apply to re-list on forty-eight (48) hours notice to the other parties.

5. Leave is given to the Independent Children’s Lawyer to issue subpoenae with leave given to all parties to inspect subpoenaed documentation with no copies to be taken without the leave of the Court other than by the Independent Children’s Lawyer.

IT IS FURTHER ORDERED THAT:

1. Pursuant to Section 62G of the Family Law Act 1975 a Family Report is to be prepared by Mr P, Family Consultant, Brisbane Registry, Family Court of Australia.

2. The report writer has leave to read any document produced on subpoena.

3. The parties shall attend and ensure the children attend all necessary appointments for the preparation of the Family Report.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4756 of 2009

MR JACKSON

Applicant

And

MS RIVER

Respondent

REASONS FOR JUDGMENT

1. The declaration as to Magellan matter will be made on overwhelming basis, particularly in relation to the Deepe matter of the children having been greatly traumatised, for whatever reason, and the children’s expressed views for not wanting to have any relationship with their father.  I appreciate that this matter was virtually settled but the independent children’s lawyer had reservations, as did I, about some of the material.

2. The matters, whilst not being heard together, will be heard back to back so that evidence from one should be able to be carried over to evidence in the other but they should be heard as separate trials, but I expect the legal representation to be the same, the report writers to be the same, counsel briefed to be the same.

3. As a result of orders of Baumann FM in the River matter the mother and children were in New Zealand for a period of time.  Annexed to her affidavit are various reports.  K’s behaviour was proving difficult and the child was returned to this country, where he has since been residing with his father.  He has now prepared an affidavit in favourable terms supporting his father’s case.

4. The father’s application is that the children, P who is 13 and attending high school, and T, who was born in November 1997, live with the father and the mother have time every second weekend.  At the present time, for reasons I don’t have to go into, the father hasn’t seen the children for a number of years. 

5. The mother has recently taken the children to see Dr W.  Dr W is a child, adolescent and family psychiatrist.  He has been involved in relation to the Deepe children.  He has prepared a report of 24 July.  In relation to the child, T, he reports:

   “When asked to comment and talk about his father he stated that he did not want to see him and stated that he was mean, and also that he could hardly remember him.” 

   Mr Hodgson, for the father, points out that the child’s recollections are at odds with the child’s statement that he could hardly remember the father and yet what he does purport to remember is adverse.

6. In the report of P’s comments she said:

   “When I asked her about her father she stated that she didn’t want to see him, that he had never contacted her while she was in New Zealand.  She added at that point that her father had been mean to [K] and [T] and also to his previous partner, [Ms Deepe].”

7. Of the father, Dr W makes these comments:

   “I’m aware of possible bias in the history of ex-partners, yet from my interaction with [the father] and the consistency of reports from various sources regarding his aggression, probable alcohol and drug problems, possible criminal issues and descriptions of his aggressive behaviour from his children I have interviewed, I have serious concerns about the safety of his children and his previous partners if they were to have contact with him.  Due to his unusual presentation on my meetings with him, his anger towards me and non-compliance with the process of medical treatment, I would no longer be prepared to have any ongoing therapeutic relationship with him.  I found his manner and presentation quite intimidating, and staff at my clinic have a similar perception of him.”

8. I went back and read the report of Dr D which was filed in April this year.  It is a report that had been prepared in October of last year.  At page 4 of that report, in relation to the father, Dr D makes this observation:

   “[The father] presented as a tall, fit, muscular man of stated age wearing jeans and casual clothes.  He made intense eye contact and it was difficult to establish rapport with him.  He was 30 minutes late for his interview but after five to 10 minutes in my waiting room asked how long I was going to be.  His speech was spontaneous, of normal rate and volume.  He appeared to use very formal words and dictation in his speech.  His mood was euthymic and his affect reactive, although he presented as very superior in manner.  His thoughts were circumstantial, over inclusive and repetitive.  The content of his thinking was at odds with other history and appeared somewhat grandiose but did not appear to be of delusional intensity.  He denied perceptional abnormalities.  Whilst he was not formally tested he appeared to be in the average range.  His insight and judgment appeared limited.” 

9. Under the heading of Opinion he observes:

   “[The father] does not appear to have availed himself of Dr [W’s] expertise with regard to his son’s problems to any extent.  It would appear that [the father] has features of both narcissistic and antisocial personality disorders, and has difficulties emphasising with others’ feelings and needs.”

10. That is two medical opinions I have got in relation to the father’s profile.  I appreciate there is other evidence that the lack of relationship has been brought about by other factors.  The final opinion of Dr W, going back to his report, on the final page of his report he said:

    “I would be of the opinion that in consideration of all the collected information regarding [the father] that it would not be in the best interests of the children to spend time with their father, and it would worsen their prognosis.” 

11. He had earlier said in relation to the issue of prognosis:

    “[N] and [P’s] prognosis is good if they have a stable and undisrupted family life.  [P] is doing well academically and socially at school.  [T] is likely to struggle both socially and academically because of his diagnosis of Asperger’s and the difficulties associated with this condition.”

12. At the present time the children have not seen their father for a lengthy period of time.  In the interim, I do not see any merit in setting up a contact centre regime where there is a possibility, based on the orders sought by the mother, that the children will have contact with their father renewed only to have it terminated shortly thereafter.  That would not be in the children’s interests.  I would also be concerned that there is a possibility of the children being traumatised by being forced to see their father.  I am mindful in that regard of Mr P’s assessment in relation to the Deepe children.  I will request that Mr P be the family consultant in this matter and ask him to expeditiously arrange an assessment of the children and the parties, and the matter can be taken up there.

13. So no orders will be made for contact at this point in time.

14. What I propose to do is, I will give the parties liberty to apply on 48 hours notice.  The usual thing is you do not get on in 48 hours but you have got to tell the other people that you are relisting it, give them two days notice.  Depending on the degree of urgency, I will endeavour to hear it. 

15. I will list this matter for 17 November 2009 for review because by then I hope we will have, for example, at the very least, Mr P’s assessments.  We will have the subpoenaed material in both matters.  We will have whatever other developments have taken place.  Certainly, a timetable, maybe an updated report from Dr D and/or a better handle on what sort of material is going to be presented.  The earliest I can set this matter down for is April next year but I will set aside five days at that time.  It cannot be heard any earlier than that, but I will hear both matters then.

16. I give you leave to issue subpoenas.  All parties given leave to inspect.  Only the independent children’s lawyer given to copy those documents.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  7 August 2009