Jasper and Jasper (No 2)

[2014] FamCA 688

FAMILY COURT OF AUSTRALIA

JASPER & JASPER (NO 2) [2014] FamCA 688

FAMILY LAW – CHILDREN – Procedural – where the mother seeks an adjournment – where the children lived with the mother – where Orders are made that the children live with the father until further order – matter adjourned.

Family Law Act 1975 (Cth)

APPLICANT: Mr Jasper

RESPONDENT: Ms Jasper

INDEPENDENT CHILDREN’S LAWYER: Joanne Boughton

FILE NUMBER: BRC 8022 of 2011

DATE DELIVERED: 11 August 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 11 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Anglin

Salvos Legal Humanitarian

FOR THE RESPONDENT: The Respondent in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McAuley of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Boughton Legal

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the children, E born … 2004 and H born … 2009, live with the father and he shall have sole parental responsibility for them in the period between now and when further orders are made in these proceedings in respect of parental responsibility.

2. The children shall not spend any time with the mother until further order.

3. The children shall communicate with the mother by telephone as determined by the father and those who he receives counselling and support from.

4. The proceedings, including the mother’s oral application for the Judge to disqualify himself from further determining the proceedings, are adjourned to 10.00 am on Tuesday, 26 August 2014 for further hearing.

5. The mother shall leave this building when these proceedings are concluded this morning without going at all to Level 3, and she shall leave the Court’s precincts as soon as possible after leaving the building.

6. Before the children leave the building with the father, Ms P, psychologist, shall attend at the Child Dispute Services section on Level 3 and speak with the children and explain to them, assisted if necessary by Senior Family Consultant Mr P, that they will be going home with their father and spending some time with him until further order of this Court.

7. The mother is at liberty to file and serve any further applications that she may consider advised and supporting affidavit material before the further hearing of this matter on Tuesday, 26 August 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jasper & Jasper (No 2) 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: BRC 8022 of 2011

Mr Jasper

Applicant

And

Ms Jasper

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Whilst my judgment was reserved in this sad and very difficult parenting orders dispute,  having concluded the trial in the matter last year, I made orders on 21 January 2014 for the mother and the father and the two children, E born in 2004 and H born in 2009, to participate with the psychologist, Ms P, as directed by her and/or the Independent Children's Lawyer, Ms Boughton, in therapeutic counselling and the supervision of re-introduced time between the children and the father so as to re-establish regular time between the children and their father on an ongoing basis. I considered that, at the time, to be in the best interests of the two children.   I made a notation to those orders that Ms P was to be notified that her counselling and supervision of the time that the children spent with the father was to be considered as totally reportable and that she might be required to provide a report to the Court at some point about its progress.

2. On 9 April 2014, I made further Orders and published my reasons for making those Orders.  The Orders that I made effectively provided for the further supervised therapeutic re-introduction of time between the children and their father that I had already put in place by the Orders that I have just referred to of 21 January 2014. I also listed the matter, particularly for further hearing today, and directed that Ms P provide a written report on the progress of the therapeutic gradual re-introduction of the children’s time with the father and her expectations and recommendations as to the future of the process. 

3. In my Reasons for Judgment delivered that day, on 9 April 2014, I said, particularly at paragraph 94, that I was satisfied that it is in the long-term best interests of the two subject children to have meaningful relationships with both of their parents.  I went on to say that I was satisfied that E and H were primarily attached to their mother. I observed that they had only known her sole care since August 2009 and that the youngest child, H, would have absolutely no memory at all of any time she spent with her father, as she was only an infant at the time her parents separated. 

4. I pointed out that I was aware of the fact that it would be emotionally traumatic for both E and H to be removed from their mother’s care and the world that they currently know and to be put straight into their father’s care.  I also observed that I was satisfied that the father recognised that and that he did not really want that to happen, but only pursued these proceedings in the first instance so that he and his two children could have and develop meaningful relationships. 

5. I determined in that Judgment, (at paragraph 100 on page 20) that I was satisfied that the very best outcome for these two children would be one where they are successfully re-introduced to their father with the support of their mother. I considered an arrangement where the children were gradually introduced to the father’s new partner and their two half-siblings, and they began to spend increasing periods of unsupervised time with the father with his new partner and their two half-siblings on a regular basis, so that before too long they were actually spending alternate weekends and half the school holidays with them to be the best outcome for them.  That is indeed all that the father was asking for in the first instance.

6. I determined that this would enable the children to develop the meaningful relationships with the father, his partner and their half-siblings that are indeed in their best interests, while continuing to maintain the relationships that they already have with their mother.  I went on to say that I was extremely hopeful that this could be achieved in a relatively short space of time.  I said then, with regret, that I was not highly optimistic about the prospect of it being successfully achieved, particularly having regard to the balance of the findings that I made and set out in my Reasons for Judgment.  I pointed out specifically, after having said that, that I remained seriously concerned that the mother may not yet be totally committed to such an outcome, that is, of her children having meaningful relationships with their father.  I went on to say, quite frankly, that I considered that the seeds for the success of this outcome rested in her hands and the efforts that she made for it to work and for the children’s relationships with their father to actually be facilitated and encouraged by her. 

7. I went on to say that I could only hope, notwithstanding my lack of optimism, that what was put in place by the Orders that I made would lead to a successful establishment of meaningful relationships between the children and their father so that they could continue to have meaningful relationships with their mother at the same time.  I have said in paragraph 103 of that Judgment, these words:

   Of course, the mother must be aware that if when the matter comes back before me for further hearing, I am persuaded that the outcome that I have already said I consider would be the best outcome for these children is unable to be achieved because of the mother’s continued unreasonable and unjustified opposition to it, there could very well be little alternative but to make orders that the two children live with the father and spend minimal, if any, time with the mother. The mother could not want that to be the outcome.

8. Today, when the matter is back before me for further consideration, there is in evidence an affidavit of Ms P, filed on 19 May 2014 as well as  affidavits of the Independent Children's Lawyer, Joanne Boughton, filed on 3 June 2014 and 1 July 2014.  There is in evidence an affidavit of the father, Mr Jasper, filed on 18 July 2014.  There is in evidence an affidavit of the mother, Ms Jasper, filed 18 July 2014.  I state unequivocally at this point in time that I have read all of those affidavits and all of the documents that are attached to them.  Indeed, I say that I also have before me an affidavit that was filed by Ms Jasper on 3 July 2014 which contained many, many pages of annexures of material that she considered relevant to the proceedings and I state again that I have read those and their contents. 

9. Attached to the affidavit of the single expert witness, Ms P, is the report that I ordered her to produce for the Court in my Orders of 9 April 2014.  In that report she sets out, with significant detail, her history of her meetings with the mother, the father and the children in this particular case. Ms P further details the appointments that were scheduled and how arrangements were made and sometimes postponed, cancelled and otherwise made for the children to spend time with their father in the supervised therapeutic environment that she provided.  The evidence established that there was a first meeting between the father and the children, a second meeting some time later, and as I understand it, a third,  indeed, at least three meetings where the children spent time with their father.

10. Ms P sets out in her report her factual observations and the opinions that she has formed from those factual observations based on her specialist training and expertise.  She ultimately then sets out an assessment of a page and a half at the end of her report. Her report, I must say, is dated 12 May 2014. 

11. I just want to refer to a couple of paragraphs of her assessment, namely from the third paragraph: 

    I have described the children’s subsequent behaviour and from it I conclude that they are acting upon strategies that have been planned before each meeting. They now act together and do not deviate from their initial behaviour, irrespective of what their father does and says.  It is unlikely that the children are acting in these ways if they are being encouraged by their mother to interact with their father and get to know him.

    The mother says she is doing all she can and invites suggestions about how she can assist.  I have done my best to provide her with information by letter about how she can assist.

    As the children’s behaviour toward their father now mirrors that of the mother toward me, and bearing in mind that she genuinely believes the father to be an imminent threat to both the children, I conclude that she is unable to provide the support the court required of her in relation to reintroduction to their father.

12. In essence, according to Ms P’s opinion, my lack of optimism seems to have been well founded.

13. Today, when the matter came before me for the latest part of these proceedings, I was pressed by the mother, Ms Jasper, who appears unrepresented by legal professionals, for an adjournment on the basis of her being unwell and not in a position today, because of her state of health, to conduct the proceedings. She put before the Court a document which has been made Exhibit 1 in the proceedings, which is a letter signed by a general practising medical practitioner from Suburb Q on Saturday, 9 August 2014. The letter sets out effectively the practitioner’s observations of the mother and the two children on Saturday morning, 9 August, and her opinions about their state of health. 

14. The solicitor who represents the father opposed the adjournment application this morning on the basis of a submission that I would not be satisfied about the credibility of the assertion that the mother was unwell.  I took the course of determining that it was appropriate therefore, to try to contact the particular medical practitioner who purported to sign the document that was before me and I adjourned briefly to see if that could be achieved.  Before I did that, I was subject to what I can only describe as a very extraordinary outburst from the mother in respect of her feelings about how the matter has proceeded and how I have conducted the proceedings to date, and her feelings about the decisions that I have made.  I can indeed appreciate quite clearly and certainly that the mother would be, having regard to her position adopted in the case throughout the proceedings to this point in time, quite distressed and upset and unhappy with the decisions that I have made in this case to this point in time and the Judgment that I have rendered as best as I could according to my judicial oath and as best as I could according to my understanding of the law applied to the facts as I have found them in this particular case.  Again, I repeat, I have an absolute appreciation and understanding for how the mother would and must feel about those decisions.  Certainly, if I was not clear as to how she felt about it, she certainly made it clear by her outburst this morning. 

15. Indeed, Ms Jasper indicated, as I understood her words, that she wants to make an application for me to recuse myself from hearing any more of these proceedings on an ongoing basis.  I understand also, and I am not entirely clear about this, that she was talking about seeking a re-trial.  Whilst I am not in a position, whilst giving these Reasons, to give her advice about that, it is something that she will have to take advice about herself, she will learn that the only way she can get a re-trial is if she appeals my Judgment and appeals against the Orders that I have made for the children.  She may very well need to get legal advice about that and get it as quickly as she can. 

16. The combination of:-

    (i)the evidence in the form of the reports that I have read;

    (ii)the findings that I made in my Judgment; and

    (iii)the observations that I have made of the mother on the occasion of the last time the matter was before me back on 11 July 2014 and again this morning;

    has given me great cause for concern, not only about the mother’s state of physical health, having heard this morning from her doctor that she was presenting as sick, but worried about the state of her emotional wellbeing and its impact in the immediate future on the children in this case. 

17. The Court heard evidence from the doctor over the telephone. She certainly confirmed she had seen all the parties and affirmed that the contents of the letter that she had signed which was made Exhibit 1 were true and that she had observed that the child E had tonsillitis and infected tonsils that were causing him to suffer from all the usual symptoms that a child does when they are suffering from tonsillitis. She also confirmed that the mother appeared to be suffering from the same sort of illness and was not well herself.  The doctor informed that she had prescribed penicillin for the child and said that the best way of treating his state of health would be to keep him away from school, give him bed rest, get him to keep taking penicillin and to generally look after him. She expected that the child would recover within a week.  She said that she would expect the mother to recover within a week as well.  The doctor said that the child H was not quite as sick, but seemed to be developing a sickness which might well turn into the same illness that her brother and mother was suffering from over the course of the weekend.  As to that, I am not certain, other than hearing the mother say that the child H is sick this morning as well. 

18. Pursuant to my Orders made on 11 July 2014, the mother brought the two children with her this morning and they are at level 3 of the Court.  I have determined to accede to the mother’s application to adjourn the proceedings over to another date. She initially said three weeks was what she was wanting for the adjournment, but I heard the doctor say that she would be better within a week so I thought this matter is one that needs to come on and be finalised as quickly as it possibly can now.  I also acknowledge in these reasons that I heard the mother say during her outburst, or at some stage during her addressing the Court this morning, that she is looking to find other evidence which she says is likely to or will prove that some of the findings of fact that I made in my Judgment were indeed wrong.  Again, that is a matter for her and she will need to take advice about that because even if she produces it, I will not be able to change findings of fact that I have already made in this case and it will be a matter for her to deal with, with respect to her, in another manner rather than just presenting it before me.

19. I sought submissions from each of the parties, after informing them that I was prepared to adjourn it but for no longer than two weeks, as to what I should do in respect of the children in the meantime, most particularly as to whether I should indeed make an order that they go and live with their father as he requests or simply leave things as they are and bring them back in two weeks’ time. 

20. Mr Anglin, the solicitor for the father, submitted to me that it would be in these children’s interests to, in this short period in between, to let them go with their father to spend time with him before the matter comes back.  That position was indeed supported by the Independent Children's Lawyer represented today through counsel, Mr McAuley, who confirmed to the Court that his instructions are indeed that the Independent Children's Lawyer submits to the Court that the children’s best interests would be served by an order that places them in their father’s care. When asked to make submissions about what should happen given that I am going to bring it back in two weeks’ time, Mr McCauley told the Court there was no change from that initial position and submitted that the orders that the Court should make, having regard to the best interests of the children at this point in time, would be to place them in their father’s care. 

21. Everyone in the Courtroom should appreciate how difficult the determination of this case is.  The responsibility that goes with appointment to this Court is no greater than when one is determining a case such as this. One never loses sight of the fact that ultimately we are making life changing decisions in respect of children. I am, of course, always guided by the statutory mandate that the decision I make must be ultimately determined by the principle that the children’s best interests remain paramount throughout the determination process.  I am acutely conscious of this in this case and have been.  It is the very reason why in my Judgment and Orders of 9 April 2014 notwithstanding the clear findings that I made in my Reasons for Judgment with respect to the mother’s position, and her feelings towards the father, I determined to give her a chance to demonstrate that she make the situation work in the children’s best interests. I did this notwithstanding that the evidence of the report writer was that the mother had told her that she would always oppose the children spending time with their father on an unsupervised basis and that if the Court made such orders she would abscond with them. 

22. The mother informed the Court that she would conform to an arrangement that saw orders being put in place that promoted and facilitated a relationship between the father and the children to the point where they would be spending time with him on alternate weekends and half holidays, but at this particular point in time I am satisfied that the report of Ms P  reflects that what the mother does in respect of the facilitation and encouragement of the relationship between the children and the father is quite at odds and completely inconsistent with what she says she wants in respect of that. 

1. At this point in time, I am therefore satisfied that the best interests of these two children will be served by giving them an opportunity that their mother has not been prepared to give them for four years and that is to spend time with their father and to spend time with him in a way where they remain quarantined from the negative influences of their mother. I will be ordering that they go home with him today from the Court and live with him until further order of this Court.  I will be ordering that they communicate by telephone only with their mother in the period between now and when the matter comes back before the Court, but only as might be determined by the father and those who he is obtaining counselling assistance from. 

2. I am quite satisfied, notwithstanding the evidence that I have heard: (a) about the boy’s asserted disabilities; and (b) about the illness that the two children are currently suffering from,  that the father and his partner, as experienced parents as they are, are both capable of providing the appropriate care for these children having regard to the matters that are currently in evidence before the Court.

3. Accordingly, I now make these Orders.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 11 August 2014.

Associate: 

Date:  25 August 2014