Jalon and Liege

[2010] FamCA 312

FAMILY COURT OF AUSTRALIA

JALON & LIEGE [2010] FamCA 312

FAMILY LAW  -  CHILDREN  -  Magellan  -  application for third family report  -  application dismissed

Family Law Act 1975 (Cth)

FATHER: Mr Jalon

MOTHER: Ms Liege

INDEPENDENT CHILDREN’S LAWYER: Ms M.S. Elleray

FILE NUMBER: DGC 1067 of 2009

DATE DELIVERED: 21 April 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 21 April, 2010

REPRESENTATION

SOLICITORS THE FATHER: No appearance

COUNSEL FOR THE MOTHER: Ms Wald

SOLICITORS FOR THE MOTHER: Rutherford & Co.

COUNSEL FOR THE I.C.L. Ms. Elleray

INDEPENDENT CHILDREN’S LAWYER Robert Halliday & Associates

Orders

1. That the application filed by the mother on 13 April, 2010 be dismissed. 

2. That the reasons for judgment this day be transcribed and copies made available to the parties. 

3. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 1067 of 2009

MR JALON

Father

And

MS LIEGE

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Before the court is an application filed by the mother on 13 April this year, in which she seeks that an updated report be prepared by Ms. C, the family consultant who has already prepared two family reports in this case. 

2. These proceedings concern the party’s daughter, L, who was born in September 2005.  Her parents separated in about January 2006;  the mother subsequently married Mr Liege. Since the 2006 separation, the mother has had three children.  The first is B, born in February 2007;  the court can say nothing of her paternity.  The second, K, born in April 2008, and the third, N, born in December 2009 are the children of Mr. Liege.

3. Last year, a family report was ordered.  The mother failed to attend the scheduled appointments.  A report was released, dated 2 October 2009.  As the mother’s application today relies on a change in her personal circumstances, it is useful to describe the circumstances at that time. 

4. The matter was referred to the Magellan list after it was alleged that Mr Liege had sexually abused L.  When that first report was prepared, L was living with the father, the paternal grandparents and a paternal aunt.  Also in the household was H, aged two, who is the father’s son from a relationship with Ms P. H did not see his mother but did spend alternate weekends with his maternal grandmother. 

5. The father had recently separated from Ms S, also known as …, with whom he lived for a period.  She has two children:  T, then eight, and E, 11.  It was alleged that Ms S was supporting the mother in these proceedings.

6. The mother was then living with K and K’s paternal grandmother, Ms V. Ms V is Mr Liege’s mother.  In her most recent affidavit the mother deposed to separating from Mr. Liege in August 2009.  Ms V was also caring for B, the first of the three children the mother has had since separating from the father.

7. L was seeing her maternal grandparents each alternate weekend.  The mother’s younger brother, J, lived with her parents and was in that household when L spent time with her maternal grandparents. 

8. Ms. C saw the father, the paternal grandparents and L in September 2009.  She observed H, then two and a half, with L.  The mother failed to attend the scheduled appointment.  She gave no explanation for her failure to attend and made no attempt to reschedule an appointment. 

9. At that time, information on the Department of Human Services’ file recorded the mother’s insistence that Mr Liege could not, and would not, have sexually abused L.  The mother’s evidence in the proceedings is that she was sexually abused as a child and had not been believed by her mother.  She deposed that one of her brothers, Y, had been convicted of a sexual offense against a minor.  In her most recent affidavit, the mother states that Y was convicted of rape and sentenced to a 12 month community-based order.  The sentence seems slight for a rape conviction but the court can say nothing further about that offence. 

10. It was the mother’s case then (she denying that Mr Liege could be a potential perpetrator of abuse on her daughter) that her younger brother, J, was a potential abuser;  it was put that he had been observed leaving a room, with an erect penis, and that L and B had been in the room.  The sense of the mother’s case in late 2009 was of concern about the propriety of L being in J’s company. 

11. The recommendations of Ms C in October 2009 were that L should live with the father;  that her time with the mother should be strictly supervised;  that she should have no contact at all with Mr Liege;  and that weekend time with the maternal grandparents should be supervised, until issues relating to J’s behaviour were clarified.

12. On 6 November, 2009 the matter came before me.  The mother sought another opportunity to play a role in the family reporting process.  Against the opposition of the father, the court ordered an updated report, giving her that opportunity.  The matter was otherwise listed for trial notice directions on 21 December.  The judgment delivered on that day notes that the mother was not at court for the hearing.

13. In an affidavit sworn on 7 April this year, the mother deposed that she did not  attend the appointments in September 2009 for the family report, because she was :

    . . . stressed by my living situation with [Mr Liege] still coming around and being in and out of Court.  [Ms V] and [Mr Liege] were undermining my confidence.  I think I was quite depressed.

14. On 7 December 2009, the mother saw Ms C, who observed her interaction with L and K.  By December 2009, Mr Liege was living in regional Victoria with a new partner.  The mother was 9 months pregnant with N, who was born a few days later, in December 2009. 

15. The mother was described by Ms C as, “watchful, immature, and oblivious to the nuances of social behaviours.”  The mother continued to maintain that Mr Liege could not and would not have abused L;  asked why, she said :

    The first time he cheated on me, he asked my permission, and he looks too dumb.

16. Ms C also saw Ms V at that time.  Ms. V expressed some concerns about the mother’s parenting abilities.  She told Ms. C she was the mother’s carer, as the mother’s general practitioner, Dr A, believed that the mother was “medically unsafe”, having regard to a range of behaviours, including, it was asserted, some suicidal ideation.

17. The essence of Ms C’s report is that the mother was experiencing difficulty parenting K, then about 20 months old.  She expressed concern that L was experiencing difficulties with maternal attachment, attributable to her earlier parenting by the mother.  Ms. C maintained her earlier recommendations for supervised time, proposing Ms V, with whom the mother still lived, as the supervisor of the Mother’s time with L.  She recommended that there be no opportunity for L to spend time with J (the mother’s younger brother) until questions of his sexualised behaviour were resolved.

18. In her recent affidavit the mother complains that Ms. C’s report is biased and contains inaccuracies.  Her affidavit is mainly a critique of statements made by people to Ms C, and attributed to her (the mother) by others.  For example, the mother does not deny that Ms V is her carer but says that Ms V “decided” to take that role and pressured Dr A to express concerns about the risk the mother posed to children in her care.

19. In that affidavit the mother denies that she regularly hits K but concedes that when she was in hospital in December 2009, having given birth to N, she did “smack” him after he bit her. 

20. In the last months the mother has, it might be said, shifted allegiances.  She deposes that in February this year she fought with Ms V and Mr Liege and started seeing her own parents, the maternal grandparents, again.  As I recorded earlier, they were seeing L regularly when the first family report was prepared in 2009. 

21. The mother deposes that after “an incident” at Ms. V’s home on 11 February, 2010 Mr. Liege sought an intervention order;  in the application the three children (B, K and N) are named as affected family members.  She deposes that Ms. V “took out an Urgent Application”, in which she sought that the three children be placed in her care.  The court cannot say if that application was brought pursuant to the Family Law Act 1975 or whether DHS was involved. The mother's evidence is that she sees those children on two days a week; the inference is that they are otherwise in Ms. V’s care, probably pursuant to court order.

22. After the disagreement with Ms V and Mr Liege, the mother initially moved to live with her parents who, it will be recalled, live with J, the person the mother earlier asserted posed a risk to L’s safety, and was a potential perpetrator of past sexual abuse of L. The mother has now moved from their home to accommodation in regional Victoria and began studying hairdressing at a local TAFE on three days a week.  She has changed her assessment of J;  her evidence now is that he poses no risk to L or any of the other children.  She blames Mr Liege for undermining her confidence in J and in her own family.

23. The mother deposes to attempts to negotiate an outcome of these proceeding with the father.  In paragraph 18 of her affidavit she deposed:

    I feel  that despite being able to negotiate with [the father], I will not get a large amount of time with [L] due to the conclusions in the Family Report.  I think that I should be re-interviewed by [Ms C] because my situation has changed dramatically.  Without [Ms V] and [Mr Liege] negatively impacting on my confidence and emotions, I have felt more capable to look after the children.

24. The applications for final parenting orders are in the list of cases which were to commence as a rolling list on 31 May and are now to commence on 7 June.  Directions for the preparation of trial material have been given.  It is the mother's submission that her changed circumstances demand the preparation of a third family report by Ms C;  she believes she would be viewed more favourably by Ms C if interviewed now. 

25. Counsel for the mother has advised of some discussions her instructing solicitor had with Ms C and of Ms C’s advice that another report might be useful or might be a good idea. Counsel was careful not to put it any higher than that.

26. On 16 April the court received a letter from the solicitor for the father, dated 13 April, advising that the father consented to the order sought by the mother in her application filed 13 April.  As I recorded when the hearing commenced, on my instructions the solicitor was advised that the order sought was not one that can be made by consent.  If he wanted to make submissions in support of the order sought, he needed to be here.  If he simply wanted the court to note he did not oppose the order, that would be noted in his absence.  He has been called, as has the father.  Neither has appeared.  The independent children's lawyer does not oppose the order for a third report, although counsel can advance no cogent reasons for such a course. 

27. It is clear on the mother’s own evidence that the mother wants a third report because she does not like the first two.  She maintains now, as she did on the first occasion she saw Ms C, that she has been undermined and overborne by Ms V and Mr Liege.  She has been living alone in a three bedroom house in regional Victoria for a few weeks;  she saw L on Easter Sunday, which was their first contact (according to her) for some five weeks.  She no longer lives with B, K or four month old N but sees them two days a week, apparently after court intervention.  They are looked after by Ms. V.

28. The mother’s rationale for a further report indicates a misunderstanding about the nature of expert evidence.

29. A good deal of evidence will be given if this case goes to trial.  The Department of Human Services has been involved and so have a number of professionals.  A number of lay witnesses will be called.  The expert evidence is one aspect of the total evidence and is not determinative.  If it were, there would be no need for a trial.  If the mother, through her counsel, wants to take issue with Ms. C’s professional opinion or challenge her observations, she can do so.

30. In my judgment, there is no utility in Ms. C seeing the mother again or observing her with L again.  It is unlikely to advance the matter.  It would expose L to yet another intervention, for no good reason.  The issue of resources has been adverted to by counsel for the independent children's lawyer.  If a third report is necessary, a third report would be ordered, despite the impact on other cases if additional resources were channelled to this case.  Cost is not the reason I propose to dismiss the application.  It will be dismissed because the additional evidence sought is not likely to assist the judicial officer who hears the trial and the preparation of another report is not warranted by the mother’s complaints about the earlier reports or asserted changed circumstances. 

31. I add that the court could have no confidence that the mother’s living arrangements and allegiances will not shift again in the period before trial.  It seems proceedings are on foot in another court about the three other children. 

32. The application will be dismissed.  The trial notice directions will remain on foot.  The reasons for judgment will be transcribed and copies will be made available to the parties.  The subpoenaed documents will remain with the court.  I will certify for counsel.

I certify that the preceding
 32 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2010.

…………………………………………
Associate.