King and King (No 3)

[2009] FamCA 1217

FAMILY COURT OF AUSTRALIA

KING & KING (NO. 3) [2009] FamCA 1217

FAMILY LAW – CHILDREN – With whom a child spends time – Interim

Family Law Act 1975 (Cth)

APPLICANT: Mr King

RESPONDENT: Ms King

INTERVENOR: K and H and E and S King

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7073 of 2008

DATE DELIVERED: 9 DECEMBER 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 7 DECEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: DR INGLEBY

SOLICITOR FOR THE APPLICANT: MARIA BARBAYANNIS & CO

COUNSEL FOR THE RESPONDENT: MR DAVIS

SOLICITOR FOR THE RESPONDENT: BERRY FAMILY LAW

COUNSEL FOR THE INTERVENOR: MS JOHNS

SOLICITOR FOR THE INTERVENOR: RICHARD CALLEY FAMILY LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR MEEHAN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: LAMPE FAMILY LAWYERS

Orders

1. That for the purposes of any final hearing of proceedings between the parties, the parenting issues be separated from the financial issues.

2. That all outstanding parenting applications be listed for the first day of a less adversarial trial at 10.00am on 4 March 2010 before me.

3. That each party sign all necessary documents and do all things required to enable Y Contact Service to supervise the time between the husband and the child N born … August 2002.

4. That the periods of time for the purposes of paragraph 3 to be spent between the husband and the said child be as may be determined according to the availability of the supervisors at Y Contact Service to supervise the time between the child and the husband but that such contact not commence before 4 March 2010.

5. That for the purposes of the first day of a less adversarial trial referred to, family consultant Mr K:

   (a)interview the husband;

   (b)unless otherwise impracticable, attend the first day of the less adversarial trial for the purposes of giving evidence as to his observations and his advice as to whether there should now be some face to face time between the husband and the child;

   (c)read the affidavit of Dr E filed by the husband on 28 July 2009, the report of Mr B (being Annexure K to the affidavit of the husband filed 11 November 2009) and the reasons for judgment this day;

   (d)paragraphs 96-100 of the affidavit of the husband filed 11 November 2009.

6. That BY CONSENT of both parties, the husband’s passport held by the Registrar be released to the husband forthwith.

7. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

8. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

9. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

10. That the single expert witness engaged to value the service station business be instructed jointly by the parties to value the business and/or the entity on the basis that each parties’ factual presentation concerning the defalcation together with the potential tax liability arising there from be considered and accepted as correct.

11. That the minutes of orders relating to the subpoena issue be engrossed by the practitioners for the subpoenaed parties.

12. That all interim applications be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7073  of 2008

MR KING

Applicant

And

MS KING

Respondent

And

K and H and E and S KING

Intervenor

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 11 November 2009 in response to an application by the wife for financial orders, the husband sought parenting orders relating to the children of the marriage H born in October 1995 and N born in August 2002.  He proposed that time with the two children commence at the contact centre at Y on a weekly basis for a minimum of two hours for each visit. 

2. When the application was argued on the papers, counsel for the husband, Mr Davis, sought only orders in respect of N and that it be by way of supervised time at the contact centre.

3. The wife opposes any order relating to N at this stage.

4. After conducting an interim hearing using the less adversarial process set out in Division 12A of the Family Law Act 1975 (Cth) (“the Act”), I made a number of orders. I declined the husband’s application for precise times for supervised contact to commence and have made orders that the parties register at the Y Contact Centre but that the time to be spent between father and son not commence before 4 March. The March date is when I will conduct the first day of the less adversarial trial.

5. In addition to those orders, I have also made an order for the family consultant Mr K to attend to give evidence after he interviews the husband.

6. Dr Ingleby appeared on behalf of the wife and Mr Meehan of counsel appeared on behalf of the Independent Children’s Lawyer.  To a large degree, the Independent Children’s Lawyer supported the position of the husband seeking that contact commence.

7. The events of significance leading up to this hearing are complicated by the financial issues.  In November 2008, the parties consented before Federal Magistrate Walters to time being spent between the husband and N at the contact centre.  However, immediately after that order was made, the parties attended upon Mr K who prepared a report dated 9 February 2009.

8. As a result of the report of Mr K, the orders relating to the husband spending supervised time with the child were suspended.  That situation has remained since that time.

9. Mr K in a comprehensive report interviewed the parties and three of the seven children.  The children relevant to the interview were then aged 6, 13 and 15.

10. In summary, Mr K said that there was an impasse between the children and their father and the evidence needed to be tested.  He said however that in his view, the wife’s view about the marriage and the problems with the children was more credible than realistic.  He said his view about the husband’s presentation was concerning.  He said the husband showed an inability to contain his emotions, was impulsive and demonstrated little (if any) insight into his family dynamic and/or that of the parent/child dynamic.  Ultimately Mr K made recommendations that there be no contact between any of the children and their father at that time. 

11. Mr K however went on to say that if the husband proceeded with his application, a psychiatric assessment should be done prior to the court hearing, the husband attend a behaviour change/anger management program and the issue of the husband’s time be then reconsidered once the recommendations have been complied with and the information from those sources had been considered. 

12. The husband then attended upon Dr E, a consultant psychiatrist.  Dr E provided a report which was encompassed in an affidavit filed by the solicitor for the husband. 

13. Dr E is acknowledged by all parties as an expert psychiatrist but also as a witness of considerable experience.  Dr E had the advantage of reading the report of Mr K.  Dr E provided a comprehensive report and then expressed his opinion.  He said that the husband presented as a suitably chastened man who appeared to have understood that his disorganised and agitated presentation to Mr K was going to get him nowhere if he was to do the same with someone such as Dr E.  Dr E found the husband in a position where unlike with Mr K, he made admissions as to the difficulties and their effects upon his wife and to a lesser extent the children.

14. Dr E then said that the degree to which the husband had learned the errors of his ways was unclear.  He observed that the husband’s focus related to the manner in which the wife had outsmarted him and taken control of the assets but in fairness, he also noted the frequent reference by the husband to the younger children and his desire to maintain a relationship with them. 

15. Dr E observed “glimpses” of the man who could be charming, smiling and personable.  He then said:

    Without wishing to dismiss this in any way, it may well be that given a chance and an opportunity for him to have contact with the children in circumstances initially supervised, the child/parent relationship could prosper.

16. Dr E agreed with Mr K that the husband required the support and guidance of a psychologist to assist him to understand the circumstances and actions which had brought about his downfall.  He noted the fact that the parental cycle had been reproduced from the husband’s own childhood.  He said that in order to break the cycle of violence and to protect the younger children, the husband needed to learn to understand himself at a deeper level and to manage and control his emotions and behaviours.

17. Dr E’s recommendation was that the husband not only participate in anger management but also one on one therapeutic work with a suitably qualified therapist on a regular basis for twelve months.

18. I place much weight on the views of Dr E.  It is not an emphatic endorsement of the husband having changed.

19. The husband then attended upon an anger management course.  It is quite clear on the document produced by the wife that the course had only just concluded.  Despite that, when the husband swore his affidavit in the first days of November 2009, he said that he had “completed” the anger management course.  I am not prepared to draw an adverse inference against the husband based upon that statement because there are any number of possible explanations not to mention the fact that the evidence has not been tested.  Counsel for the wife pointed to the statement of the husband and asserted that it was unashamedly a lie.  Time will tell whether that is right.

20. The attendance at an anger management course and the provision of a certificate by the providers does not persuade me that there has been any significant change.  That also is a matter for evidence.

21. On 11 November 2009, the husband filed his affidavit and annexed to it, a letter dated 2 October 2009 from Mr B who is described as a psychologist.  It was to Mr B that the husband went presumably as a result of the recommendations of Mr K although the report refers to the fact that the referral was for treatment of depression and anger management in July by a medical practitioner.  That discrepancy also needs an explanation because the report of Mr K was in February 2009 and the affidavit of Dr E had not been provided.

22. Mr B obviously relied upon what the husband told him and his own observations over 11 counselling sessions that commenced in July 2009.

23. Mr B was of the view that many of the sessions with the husband focussed on the frustration around the financial settlement as well as the complications of the husband bringing to Australia his new wife from Lebanon.  Importantly, Mr B noted that when the husband was asked about his reasons for wanting to spend time with his children, he became guarded, defensive and angry.  He said as a consequence, it had been difficult to ascertain the nature of the husband’s relationship with his children and his motivation for wanting to resume contact with them.

24. Mr B observed that the husband was a man who struggled to cope with the losses over the last 12 months which included employment, financial independence and the loss of status within his community.  Because of the fact that the Medicare scheme only provided a limited number of consultations, it appears that as at October 2009, Mr B intended to end his association with the husband.

25. One of the criticisms of Mr K of the husband was that he had limited insight and that he was very critical of his wife.  Mr B made the same observation that it was the husband’s perception that the wife was acting in a manner to seek revenge rather than appropriate negotiation.

26. During the period prior to the hearing, the Independent Children’s Lawyer advised that he would not support face to face contact between N and the husband.  That changed at the hearing to the extent as I have set out.

27. The Independent Children’s Lawyer interviewed the three children and said that all were resistant to contact with the husband.  Mr K however indicated to the Independent Children’s Lawyer that there might be a prospect of something starting between the husband and at least N.

28. It is difficult to determine a matter such as this on the papers where the evidence cannot be tested and the facts are very much in dispute.  Regardless of that, I am obliged to make a decision which I think is in the best interests of the child.  This is a case where a court has previously suspended what the parties had agreed upon based upon the advice of an expert witness.  Further, based upon the expert’s advice, the husband has undertaken a number of things about which the evidence is not clear. 

29. As I indicated to the parties, whilst the door may very well still be ajar, I would want to know from an expert such as Mr K whether contact even in a supervised and secure environment might be traumatic for a child who has indicated resistance to having time with his father.  I take into account the fact that the interview with the Independent Children’s Lawyer was apparently in the presence of 16 year old D.  The extent of any influence is not known.

30. In working out what is in the best interests of a child, findings need to be made upon the evidence wherever possible.  In this case, findings cannot be made.  That severely limits what evidence I can rely upon to draw conclusions.

31. It is of serious concern that almost a year has gone by and no time has taken place between father and 7 year old N.  For that reason, to delay the parenting issues to be heard at the same time as a very complicated financial dispute does not seem to me to be in the best interests of the child.  The longer the delay, the more entrenched the child’s attitude is likely to be and the less prospect there is in any relationship forming.  For that reason, I have proposed to make orders bifurcating the trial.  There are still discovery issues progressing relating to financial matters and I see no reason for them to have an impact upon the parenting matters.

32. Furthermore, in determining what is in the best interests of a child, a court is obliged to take into account the matters set out in s 60CC.  Section 60CC divides various factors into primary considerations and additional considerations.  As has been said in previous hearings, there must have been a reason for the distinction between those considerations.  In respect of primary considerations, the need to ensure that a child benefits from having a meaningful relationship with a parent has to be carefully weighed against the right of the child to protection from abuse.  The evidence before me as to either of those issues is unclear.  The violence and abuse issues are very much in dispute although there is a very strong indication in the experts’ reports that the husband acknowledges serious problems within the marriage relationship and that relating to the children.  In my view, to simply start a face to face relationship now even on a supervised basis without some evidence as to the impact upon the child could very well be inconsistent with one of the two primary considerations to which I have referred.  To protect the child therefore, it is important that all of the evidence be made available to the Court.

33. There was considerable discussion between all parties about Mr K updating the family report.  These children have been embroiled in this family dispute for long enough.  Unless Mr K saw some particular reason for the child N to be interviewed again, I would be very hesitant for him to face that prospect.  The child has been present when his siblings were interviewed by the Independent Children’s Lawyer and the report of Mr K notes an attendance in February 2009.  As such, I see no reason why Mr K would need to endeavour to ascertain the child’s views or how he would feel if orders were made.  I will however want to know what Mr K thinks about that prospect.

34. Having said that, it is important that the husband have an opportunity to explain to Mr K just what he has learned from all of the exercises that he has undertaken in 2009.  At the same time, Mr K should read the report of Mr B and if possible, have an opportunity to discuss with Mr B just what he observed over the 11 or so sessions with the husband.

35. In the circumstances, in my view, it is not in the best interests of the child that an endeavour be made even on a supervised basis at this stage for there to be face to face contact between father and child without some clear evidence that the child will benefit from and not be frightened of that prospect.  It is not appropriate that a court use a trial and error approach even with a final hearing pending.

36. In those circumstances, I do not propose to concede to the husband’s application to start supervised contact at this time. 

I certify that the preceding Thirty Six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  11 December 2009