Josephs and Searle

[2009] FamCA 514

FAMILY COURT OF AUSTRALIA

JOSEPHS & SEARLE [2009] FamCA 514

FAMILY LAW – CHILDREN – With whom a child spends time – Suspension of spends time with orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Josephs

RESPONDENT: Mr Searle

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: NCC 2503 of 2008

DATE DELIVERED: 17 June 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Johnston JR

HEARING DATE: 16 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Rod Powe Lawyers

FOR THE RESPONDENT: Mr Searle, father in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Squires, Legal Aid Commission of New South Wales

Orders

1. That the Director-General of the Department of Community Services consider intervening in these proceedings.

2. That pursuant to s 69ZW of the Family Law Act 1975 the Director-General of the Department of Community Services is directed to provide to this Court all files which contain documents and reports relating to G and M both born on … May 2003.

3. That all time spent between the children and their father is suspended pending further order.

4. That the question of a sanction against the mother for the finding of a breach of Court orders on 15 August 2008 be reserved.

5. That the mother’s Contravention application filed on 15 September 2008 be consolidated with the substantive proceedings.

6. That these proceedings be adjourned to the Judicial Registrar’s Duty List at 10:00 am on 6 May 2009 for directions in the substantive proceedings and the mother is excused from personal attendance on that occasion.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2503  of 2008

MS JOSEPHS 

Applicant

And

MR SEARLE

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Josephs, to whom for convenience I shall refer as “the mother”, for an order to the effect that the orders of this Court made on 28 March 2007 be suspended pending further order.  What the mother is seeking as a matter of practicality is that all time between the two children of the relationship G M both born in May 2003 not spend any time with their father pending further order. 

2. The children’s father is Mr Searle, to whom for convenience I shall refer as “the father”.  The father opposes the orders sought. 

3. The parties have been engaged in contest over many years about the parenting arrangements for these children. This morning I heard a Contravention Application brought by the father against the mother.  After taking evidence from both of the parties and submissions from them, ultimately I found that the mother had committed a breach of the current orders, the breach being that she failed to make the children available at their school for collection by their father at 3:00 pm on 15 August 2008 as required by the orders made on 28 March 2007. 

4. There is another Contravention Application, this having been filed by the children’s mother on 15 September 2008.  In all the circumstances, including lack of available time, I did not hear this application.  Instead I made an order consolidating it with the substantive proceedings. 

5. After I had made a formal finding of a breach by the mother of the orders as referred to above her solicitor asked me to deal with her interim application to suspend the current orders providing for the children to spend time with their father. 

6. The proceedings are complicated.  In order to progress the substantive issue between the parties arrangements were made for preparation of a children and parent’s issues assessment, this being undertaken in March 2009. 

7. Unfortunately for these children the assessment contains some very disturbing reading.  It is obvious to anybody who has been involved in the case that the parents have a highly conflictual relationship.  Neither of the parents has been able to facilitate a meaningful relationship for the children with the other parent and this is of course borne out by the ongoing litigation.  As would be expected the children have been immersed in the conflict and this of course is anything but helpful in terms of their emotional development.  This highly conflictual relationship was exacerbated last year by allegations that M had been sexually assaulted and there has been an investigation by the Joint Investigation Response Team which ultimately found that the evidence was inconclusive in relation to any sexual assault.  Each parent raises child protection concerns against the other and I propose to make an order to the effect of requesting the Department of Community Services to intervene in the proceedings. 

8. There are concerns that in the mother’s care as these children are, the children are exposed to emotional harm due to the failure by their mother to protect them from her own emotional state and also by failing to promote a meaningful relationship with their father.

9. On the other hand, there are very serious concerns about the father’s lack of emotional stability.  In this regard page 8 of the Assessment includes the following:

   The father’s presentation and behaviour throughout the assessment is of extreme concern and it is noted that the subpoenaed information reveals that the father has behaved in a similar manner with JIRT, DOCS and the children’s school (on one occasion whilst the children were present). 

10. I digress to note that earlier in the Assessment it was observed that when the father was advised that he would not be spending time with the children in the context of the immediate assessment the father became verbally abusive towards the Child Dispute Services staff using the terms such as “slut”, “bitch” and “fucking cunt” as well as other abusive terms to individual staff members. 

11. Continuing to quote the Assessment at page 8 I note the following:

    The father claims that his behaviour is related to the injustice he is experiencing and that he does not behave in such a manner when he has care of the children.  It seems, however, that the father is not able to appropriately contain his emotions in any setting and that he has extremely rigid views and beliefs, which if deviated from by others results in his behaviour becoming threatening, intimidatory and abusive.  Accordingly, if the children express a view to the father which is not consistent with his own world view (which seems highly likely at this time) then these young children are likely to be directly subject to high level verbal and emotional abuse from the father.  In addition to this the children are likely to experience the father interacting with others in a similar manner and therefore may be placed in a potentially dangerous situation.

12. On my reading this material to the father his challenge was to the effect of asking what evidence there was to the effect that he had engaged in any of this behaviour at any time when he had the care of the children. 

13. In my view the difficulty about this is that the Court could have little confidence, based on the objective material, that it could trust the father not to engage in such behaviour if he was placed in a position of responsibility for the children.  This is firstly because of the observations in the Children and Parents Issues Assessment including the observation that the father behaved in a similar manner with other persons in authority.  Unfortunately this accords with my own experience of the husband’s behaviour.  So persistent is his emotional instability that on 20 January 2009 when I commenced hearing the Contravention proceedings at a time when I had to adjourn the proceedings because we had exhausted the available court time the father became frustrated to the point where he became disrespectful and somewhat abusive and I found myself having to warn him about his behaviour and seek apologies from him which he then gave.  There were similar behaviours manifested by the father in the courtroom today.  At any time when he appeared to regard the wind as blowing against him, as it were, there was an explosive reaction often with verbal abuse not only cast towards the children’s mother but also towards the solicitors in the proceedings and on numerous occasions directly to me.  This must be regarded as a matter of major concern when the father must be aware that his behaviour is on show, that there are serious criticisms of this behaviour and reservations about his capacity to be able to behave.  Yet such is the compulsive nature of this behaviour that he is unable to contain it even in the formal courtroom setting when the father has much at stake.

14. This Court does not take risks with the emotional welfare of children and in the absence of some evidence on the part of the father that he is prepared to consider addressing this behaviour, in my view it is quite inconsistent with the best interests of these children to be exposed to the potential for such relapses of the father at a time of him being entrusted with responsibility for them.  In my view, these factors amount to an unacceptable risk to the children within the well-known principles in the well-known authorities.  Accordingly, until there can be further investigation of these matters and hopefully, assistance by a suitably qualified expert, in my view the interests of these children require that they be not exposed to any such behaviour.  The order will be to the effect that pending further order the time between the children and their father will be suspended.

I certify that the preceding fourteen (14) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston .

Associate:     

Date:              17 June 2009