Keane and Keane and Anor

[2007] FamCA 1499

FAMILY COURT OF AUSTRALIA

KEANE & KEANE AND ANOR [2007] FamCA 1499

FAMILY LAW – CHILDREN – Second hearing of a Division 12A LAT procedure – No agreement reached and matter fixed for trial – Comments made as to the strength of the report of the Family Consultant, particularly given the age of the child at 17 years – Discussion dealing with children’s wishes

Family Law Act 1975 (Cth)

Johnson & Johnson (2000) 201 CLR 488
Vakauta & Kelly (1989) 167 CLR 568 at 571
H & W (1995) FLC 92-598
R & R (Children's wishes) (2000) FLC 93-000

APPLICANT: Ms Keane

RESPONDENTS: Mr & Mrs Keane

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 6543 of 2007

DATE DELIVERED: 7 December 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 7 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Whitchurch

SOLICITOR FOR THE APPLICANT: Rigoli & Associates

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: Dwyer Robinson Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Buchanan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: O'Keeffe Pithouse

Orders

1. That all extant applications be adjourned to a date to be fixed for trial and upon making necessary trial preparation orders.

2. That the ex tempore judgment delivered this day be transcribed and when transcribed a copy placed on the Court file and made available to all parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6543  of 2007

MS KEANE

Applicant Mother

And

MR KEANE & MRS KEANE

Respondent Maternal Grandparents

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me as a second phase of the Less Adversarial Trial procedures pursuant to Division 12A of the Family Law Act1975 (as amended).  The court file indicates that the mother in the proceedings, Ms Keane, reactivated the action by way of a Form 1 Application filed on 8 June 2007 together with a Form 2 Application filed that day.  A Form 1A Response was filed in the proceedings by the maternal grandparents Mr and Mrs Keane.

2. The matter then proceeded in court, firstly by being returned before Registrar Moser on 18 July 2007 on which day an order was made that the child M, the subject of the proceedings, who was born in November 1990 be independently represented.  It was highly significant that the boy was 17 years of age. 

3. The matter came before me for the first hearing pursuant to the Less Adversarial Trial procedures on 19 October 2007.  On that day Mr Whitchurch appeared for the mother, Ms Smallwood for the maternal grandparents and Mr Brewer as counsel for the Independent Children's Lawyer.  Following submissions and having the issues identified to me I ordered, in summary, that the parties attend upon Ms L, Family Consultant, who was assigned to the proceedings on 14 November 2007, for the preparation of a report.

4. I further ordered that the report be prepared as soon as possible in the expectation that the proceedings would continue in December 2007.  Pursuant to the orders made by me that day I directed that a number of specific considerations be addressed by the Family Consultant.  They are set out in paragraphs 1.11 to 1.16 of those orders.  Accordingly the matter returns to me this day and in addition to the report of Ms L dated 21 November 2007, there is a short affidavit by the mother who is critical of the report.  However that is not the end of the matter in terms of the reality of the proceedings before me.

5. I do not propose to set out in detail the chronological background of the matter save to say that M has been, following his birth, living with his maternal grandparents.  That is, since 1990.  For seven years following his birth, or thereabouts, the mother lived at the home of her parents.  However, the affidavit material reveals that she was somewhat aberrant in her attention to her maternal duties and ultimately she left that home in the pursuit of her own interests.  In the meantime M continued to be cared for by the maternal grandparents within the broad family that operated a farm in the Western District.  The paternal grandparents have nine children, six of whom live around the Western District farming property. 

6. Orders were made in 1997 for M to spend time with his mother each alternate weekend and for part of the school holidays.  Since that time, and for reasons that may have to be debated if relevant, the mother has spent time with M in total for a very small percentage of the decade since passed. 

7. By her Form 1 Application, the mother now seeks that M live with her and that he spend time with the maternal grandparents each alternate weekend.  As a preliminary review, such an order seems frankly risible given the whole of the circumstances of the case.  During the course of the proceedings I have indicated a preliminary review.  For the benefit of the parties and in particular the mother in the event that she may feel somewhat aggrieved by the discussions that I have had thus far with her counsel, I refer to what the High Court had to say in Johnson & Johnson (2000) 201 CLR 488 and in particular at 493. There, Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ had this to say:

   “Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.  The rules and conventions governing such practice are not frozen in time.  They develop to take account of the exigencies of modern litigation.  At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta & Kelly (1989) 167 CLR 568 at 571 Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”

8. I have formed tentative views.  I have debated those views with Mr Whitchurch and in the presence of the mother.  It would be a sorry state for litigation in ordinary courts of law if judges were not to make it clear what preliminary view they may have addressed at a particular stage, particularly given that a trial judge has access to all relevant material to the time of forming that independent and preliminary view.  I am seized with all relevant data in which to formulate a preliminary view which is clearly open on the material before me.  It is open to me by reason of the strong recommendations of the Family Consultant, to which I will address myself shortly, and the view now taken by the Independent Children's Lawyer, Mr Pithouse who has had considerable input into the life of young M.

9. I will deal now with the report of Ms L.  It seems to me from a fair reading of her report that she had access to considerable information for its preparation.  That included interviews with the relevant parties, observations, telephone contact with various of the parties and other persons significant to the care of M including various Consultants engaged in his life.  Those Consultants include a Disability Client Services Assessor, contact with a member of the Behaviour Intervention and Support Team assisting M, together with his paediatrician Dr P.

10. It seems to me that Ms L addressed the background issues accurately, recording the current parenting arrangements and the proposals of both the parties.  She then dealt with the mother observing that she presented as a “confident communicative woman” in her middle thirties.  She was accompanied by her partner of nine years, Mr R.  I make the observation that Mr R, both this day and at the last hearing attended with the mother and there would be no doubt that they enjoy a strong and united family environment.  They have a child of their union, E, who is two years of age.  The mother also has another child, S who is nine years of age and born of an earlier relationship.

11. Ms L observed that the mother "felt proud" that she was able to demonstrate she was successful in her life because S and E were happy well adjusted children.  That certainly addresses itself as a credit factor in the proceedings, concerning what I rather suspect is the fact that she has emerged from a troubled past into a stable present.  She is to be congratulated for that.  However, the impact upon M of the past is the one that addresses the child’s attitude this day.

12. It was the view of the mother that M had been “discouraged” from spending time with her by her parents and all her siblings.  Ms L reported that the mother felt that she "intuitively knew what was best" for M.  She recorded that the mother said M needed to be supervised "24/7", that he had a "childlike brain" and was a long way behind other children because he is "socially retarded".  She recorded that the mother continued by explaining to her that M was a "young man with a child's mind" and that she could "never see him living independently”.  I might interpose there and say that at the first hearing of the Less Adversarial Trial procedures, the maternal grandparents who were both present in court that day made it clear that M was part of a large and united family, that he worked on the farm and had a secure financial future in front of him.

13. In paragraph 13 of her report, Ms L observed that several times over the course of the day she emphasised to the mother the fact that M did not want to live with her and attempted to explain the impossibility of "forcing any adolescent of 17 years" to do something against his will.  She said that the mother acknowledged that M "might have" expressed such an opinion, but she was of the view that to remain with the maternal grandparents would not be in his best interest and that M could be assisted through counselling. 

14. Ms L then dealt with the maternal grandparents who she described as "receptive and forthcoming people in their early seventies”.  She recorded that both parties agreed with what the mother asserted, namely they had not enjoyed a productive relationship with each other.  Indeed, the maternal grandmother said this had "worried and perplexed her for many years”.  The paternal grandfather said that in his view the mother was provided with more attention than some of the other children.  She required speech pathology and was both “demanding and attention seeking”.  Ms L then records events that occurred, now many years ago, relating to the general nurture of their daughter and their grandchild.

15. Dealing with M, Ms L reported that, "He presented as a friendly almost 17 years old adolescent who seemed extremely anxious about what lay ahead of him that day.  He revealed no outward sign of a disability other than a lack of capacity to persevere with a conversational theme”.  She recorded the fact that he had a serious farm accident when he was four years of age which had affected his vocal chords.  She otherwise reported on a number of matters of which she was informed by M and of his life on the farm which was a matter of “considerable pride” to him.  Ms L said that M became noticeably more anxious in discussions about his mother.  He stated that he would not live with her and "nobody will make me".  He added that his mother did not "raise me up" and that he would make up his own mind now as to when he spent time with her. 

16. Ms L then dealt with observations made by her of various interactions which are recorded in paragraphs 31 to 33 of the report.  She then dealt with inquiries from a Mr W, the current case manager from the Department of Human Services, Disability Client Services.  She further recorded information received from the Behaviour Intervention and Support Team provided by Ms F and also from Dr P,  M's paediatrician for the past 13 years.  In relation to the latter, she recorded that "Dr [P] stated that as a result of the accident the frontal lobe of [M]'s brain was affected and the section of the brain affected social functioning”.  Dr P informed Ms L that M had become “much more settled” since he was allowed to leave school and stated that he believed M should be able to determine with whom he lives and how frequently he spends time with the other parent. 

17. Ms L then dealt with her Evaluation which strikes me as a very thorough one, achieved from having to hand substantial and relevant material.  She dealt with a dispute between the parties and at paragraphs 47 and onwards had this to say.  I propose to incorporate into this short judgment those relevant paragraphs in order to give narrative understanding to the preliminary view that I have formed:

    “47.[The mother] is applying to the court to have [M] live with her.  However, [M] has never lived with his mother, and in fact there seem to be extremely long periods of time when [the mother] neglected to see her son at all.  The Court Order of 1997 allowed [the mother] to spend time with [M] on alternate weekends, but according to [the maternal grandfather] this only occurred about nine or 10 times in 10 years although [M] has spent more time with his mother recently.  Despite [the mother]'s statement that [M] loves spending time with her, on the interview day [M] gave the impression that he did not enjoy a good relationship with his mother, both during his verbal narration and during the observation period.  [M] clearly articulated to the Consultant that he wants the sole option of choosing when he sees his mother.

    48.[M] is a client of Disability Client Services, and he had an active Case Manager.  Two workers from that agency have assured the Consultant that they will work into the future with the family to meet [M]'s needs, and the family has indicated their willingness to work alongside DHS. 

    49.[M] was able to clearly articulate several times to the Consultant that he wanted to make his own decision regarding his future.  Whilst it is most likely that [M] will require ongoing support, it is the Consultant's opinion that he should be allowed to determine when he spends time with his mother.  This opinion is based on the Consultant's own assessment of [M] at the interview, the fact that [M] is 17 years of age, and the fact that he will continue to be supported through Disability Client Services.  Significantly, [M]'s paediatrician Dr [P] is also recommending that this choice be left to [M]. 

    50.There is little doubt that unless [M] is allowed to make this decision himself the relationship between him and his mother will deteriorate further.  There is also a concern that [M] might abscond if he is ordered to spend time with his mother against his will.  Nevertheless the onus is on [the maternal grandparents] to encourage [M] to continue to develop and strengthen his relationship with his mother.”

18. Ms L then set out her recommendation, which is stark and presents with ringing clarity.  She recommends:

    “That there be no order made in relation to the time that [M] spends with his mother.”

19. The report came under some criticism by the mother, who caused to be filed an affidavit on 16 December 2007.  I have read that affidavit carefully and listened to the submissions of Mr Whitchurch in relation to the criticisms launched by her.  As a preliminary view, those criticisms do not amount to much at all.  It was the methodology adopted by the Family Consultant who, in a very strong report, advanced an Evaluation and Recommendation upon a great deal of material she had before her.  The submissions of Mr Whitchurch in support of the criticism do not, in my view, having listened carefully to them reach the level that is sought to be achieved by the mother.

20. I will now deal with the submissions of the parties.  Ms Buchanan submitted to me that Mr Pithouse, the Independent Children's Lawyer had spent significant time with M, being one whole day down at the farm.  She submitted that M had made it quite clear he wished to stay on the farm. 

21. Mr Whitchurch submitted that it was the mother's desire to spend time with M, but "that is just not happening".  Criticism was launched at the maternal grandparents and their wide and broader family that M was somehow manipulated against the mother and was so under their control that he had no mind of his own.  That does not seem to me to be the case at all, having regard to the report of Ms L.

22. I have listened carefully to the submissions of Mr Whitchurch and also some further evidence advanced by the mother before me who made it clear that "the reality is [M] wants to spend time with me".  That of course arises from what she claims M has said to her, but disregards the important observation which is fundamental in cases such as this, namely that children often say things to a party that they believe that party wishes to hear. 

23. I heard compelling submissions from Ms Smallwood.  It was her submission that this matter had now reached a stage where to permit the application to continue was actively detrimental to M.  It seems to me that there is much force in that submission.  Ms Smallwood argued that M had indicated the only stress he feels “is the proceedings”.  That too has force. 

24. Ms Smallwood then dealt with the mother's complaints about the report and addressed my attention to paragraphs 31 to 33 under the heading “Observations” made by Ms L in the course of her report.  She pointed out M was a young man with a driver's permit.  He took pride in his farm work.  He had developed a life "over 17 years" under the care and direction of his maternal grandparents, and the stark position now is that the mother sought to change this position against M's wishes.

25. Ms Smallwood submitted that M had proceeded successfully through life despite a "huge raft" of problems.  There is force to that submission on the face of what I read.  Ms Smallwood also addressed various of the recommendations made by Ms L and in particular (paragraph 50) which I have recorded earlier in this judgment.  She submitted that it is “actively detrimental” to proceed further.  It seems to me that there is force in that submission too.  Ms Smallwood then addressed me over two incidents at a weekend when M spent time with his mother following the last court hearing, and otherwise an invitation to attend M's birthday party at the Western District farm in late November 2007.  These latter matters I do not take into account for the purposes of these remarks.  It was the strong and compelling submission of Ms Smallwood at this stage that the mother should reconsider her position and that the proceedings now come to an end.

26. The matter was stood down for the parties to negotiate and consider their respective positions. Unfortunately, the matter is to proceed and Mr Whitchurch has urged that I fix the matter for trial.  In the course of her submissions however, Ms Buchanan tendered two letters from the Independent Children's Lawyer to the mother's solicitors.  I will read the whole of the two letters into the transcript in order that a reader may gain an understanding from the narration of these letters and how they sit seamlessly beside the matters to which I have earlier recorded.  The first letter of 28 November 2007 records the following quote:

    “We acknowledge receipt of your email of 27 November 2007 and advise we have referred your previous correspondence to the Family Court Writer for her advice. 

    Insofar as the assertions that your client is being prohibited from spending time with the child (who is now 17 years of age) and that your client and the child are significantly distressed, we are unable to comment.  Certainly the indications we have from [M] are that the only stress he suffers relates directly to these proceedings. 

    We also advise that we have received a copy of the Family Report in this matter which was released on 26 November 2007.  We assume that you now have a copy of the report as well. 

    The recommendations are unequivocal and are probably the most stark that the ICL has seen in this career.  Mr Pithouse has no intention other than to adopt the recommendation. 

    In the absence of any material that your client has filed to date and the time that the ICL has spent with [M], the recommendation appears to be absolutely appropriate and it would be distressing for [M] if your client pursued her application.  That would not be in [M]'s interest. 

    The ICL recommends that the proceedings be otherwise discontinued. 

    This letter will be forwarded to the solicitors acting on behalf of the grandparents.”

1. The letter of 30 November 2007 records the following:

   “We refer to your facsimile of 30 November 2007 which was a copy of your facsimile to the solicitors acting on behalf of the grandparents and note that whilst there may be Family Court Orders in place with regard to your client spending time with [M], it is the ICL's view that in the light of the impending Hearing on Friday 7 December 2007 it is quite reasonable [M] not have time with his mother this weekend.”

2. Pausing there, it appears to me that the mother's lawyers were attempting to use, as a balanced platform of reason and logic, orders that were made 10 years ago without regard to the intervening period of time.  That in my view was a risible suggestion.  Returning to the letter -

   “As you are aware, it was [M]'s birthday last weekend and the ICL understands that arrangements were made on the request of the mother for her to be able to attend at [M]'s residence to share in that celebration with him for his 17th birthday.  Your client failed to attend.  [M] was disappointed by that. 

   [M] is very keen in pursuing a farming career and, in so doing, wishes to be present this weekend when haymaking is to be undertaken at various family properties.  As you would appreciate this is a seasonal activity and an integral part of the family expertise [M] is attempting to gain for himself so he may be an independent person once he reaches the age of 18 years. 

   The last two pieces of correspondence we have received with regard to your client spending time with [M], particularly in light of the recommendation of Family Report, indicates to the ICL that your client does not demonstrate any insight as to [M]'s needs or understands the potential damage she is causing to any relationship that may exist between herself and her son. 

   To this end the ICL intends to take no active involvement in compelling [M] to attend upon his mother this weekend.”

3. This matter will now proceed to trial.  I will direct that my extempore judgment be transcribed and placed on the court file and that it be made available to all practitioners, including Victoria Legal Aid.  I understand that the mother is legally aided and in the circumstances before me, I consider it proper that the Victorian Legal Aid should be aware of a preliminary view taken, which is a view reached upon a synthesis of compelling material on the court file.  The maternal grandparents are not legally aided.  They fund themselves.  It is an expensive exercise for them. 

4. I have addressed Mr Whitchurch in the presence of his client on the relevant factors for consideration when dealing with wishes of children.  I have referred him to H & W (1995) FLC 92-598. I have also addressed his attention to R & R (Children's wishes) (2000) FLC 93-000 per Nicholson CJ, Finn and Guest JJ. In particular, what that court had to say in analysing H & W (supra) and referring to paragraphs 40-41 thereof.  In the course of its judgment, the Full Court said that:

   “There were many factors that go to the weight that should be given to the wishes of children and these will vary from case to case.  It is undesirable and indeed impossible to catalogue or define them in any manner suggested.  Ultimately it is a process of "intuitive synthesis" on the part of  any trial judge weighing up all the evidence relevant to the wishes of children and applying it in a commonsense way as one of the factors in the overall assessment of children's best interests.”

   That citation came directly from R & R (Children's wishes) (supra). 

5. This trial will be obliged to take place sometime next year.  I am unable to provide a date.  However, it will not take place before March 2008 as my calendar is completely filled.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate

Date:  20 December 2007