Lindsay and Baker

[2009] FamCA 800

FAMILY COURT OF AUSTRALIA

LINDSAY & BAKER [2009] FamCA 800

FAMILY LAW – Children – with whom a child lives – best interests of child

Family Law Act 1975 (Cth)

Goode v Goode (2006) FLC 93-286

APPLICANT: Ms Lindsay

RESPONDENT: Mr Baker

INDEPENDENT CHILDREN’S LAWYER: Mr Damian Carter

FILE NUMBER: BRF 11130 of 2003

DATE DELIVERED: 11 August 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 11 August 2009

REPRESENTATION

THE APPLICANT: The Applicant appeared in person

THE RESPONDENT: The Respondent appeared in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Carter, Solicitor, of Carter Farquar Lawyers of Brisbane

Orders

1. The Application in a Case filed by the mother on 18 June 2009 is dismissed.

2. The further hearing of the matter be adjourned to the Magellan Directions List at 11.00am on 13 November 2009 in the Brisbane Registry of the Family Court of Australia.

3. Each of the parties do all such things and sign all such documents as might be necessary to allow the therapist Ms M to provide to the Family Consultant Ms B all such information relevant to the best interests of the child … born … October 2002, that in the professional opinion of Ms M, are appropriate.

4. IT IS REQUESTED THAT, if at all possible, Ms B provide her further report previously ordered, prior to the adjourned date of 13 November 2009, with such report to have had reference to the report contemplated by the Department of Communities (Child Safety Services) and all such further information as the Independent Children's Lawyer might provide to Ms B.

5. Both the father and the mother have leave to inspect all documents produced pursuant to subpoena, save for where the recipient of any subpoena objects to such documents being inspected.

IT IS NOTED THAT

The Orders made by Justice Murphy on 26 February 2009 for supervision pursuant to Section 65L shall continue.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 11130 of 2003

MS LINDSAY

Applicant Mother

And

MR BAKER

Respondent Father

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings concern the mother’s Application in a Case filed by her on 18 June 2009.  She seeks an order that her son (“the child”) reside with her brother.  The child was born in October 2002 and is, accordingly, almost seven. 

2. In addition, the mother seeks an order that the father spend supervised time with the child every week and that the mother spend supervised time with the child every week.

3. On its face this application can be seen as extraordinary; the mother of a child is seeking an order that her young child be placed with a person other than herself or the father.  By that reason alone it might be thought that this case has significant features which are profoundly troubling to the court and that is all the more so when regard is had to the profoundly lengthy chronology of dispute between these two parents about the child.

4. Put in simple terms these two parents have been arguing about the child almost as long as he has been alive. 

5. There have been, in the words of Ms B, a family consultant who has most recently prepared a family report dated 24 February 2009:

   [a] plethora of family reports that have not only considered the mother’s concerns but have also assessed the dynamic between [the child’s] parents and also the impact that this continuing dispute is having on [the child].

6. It is hardly surprising that, in her evaluation, Ms B concludes that the conflict between these parents is having a profoundly detrimental effect on the child. 

7. In her evaluation Ms B said this:  

   35. This matter has been before the court on numerous occasions since 2003 and it is my view that the driving force behind most of the applications is the mother’s dogged determination to find/provide sufficient evidence that would convince the court that [the child] is at an unacceptable risk whilst in the care of his father.

8. She goes on to say:

   I am most concerned about [the child’s] psychological and emotional well-being and would suggest that any further interviews of the child in relation to the mother’s initial and/or ongoing concerns would in itself constitute abuse.  This in my opinion was acutely evidenced by [the child’s] disturbing behaviour during one of two interviews by police last year where it was described that he curled up into a foetal position and sobbed.

9. Having read that profoundly sad and disturbing evaluation by an expert family consultant, the mother now suggests that this almost seven-year-old boy should be put into the care of a relative stranger. 

10. She does not, in respect of that application, put any affidavit material before the court that informs the court about who this person is, or his circumstances, save that which is contained in an affidavit filed on 18 June 2009 by her.

11. That affidavit contains the totality of material upon which the mother would have the court act.  That information, in its entirely, is as follows:

    5.        My application seeks that the residence of my son, [the child], change to a neutral person and I nominate my brother, Mr [ Lindsay] who resides at [a specified address].  His wife, [the child’s aunt] is able to provide a parenting role to my son, [the child].

    6.        My son, [the child] knows Mr [Lindsay] and his partner [the aunt].

12. In addition to that sum total of the information about the putative carer of the child thus provided, the mother told me from the bar table this morning that the child saw her brother in Easter 2008, and on occasions when she had the child “before the abduction” in mid to late 2008. 

13. On the mother’s case, then, the child has not seen his proposed full-time carer for at least 12 months.

14. The application made by the mother also occurs within the sordid chronological history to which I have earlier referred.  Some of it, at least, bears repeating. 

15. In October 2005 consent orders were made by Bell J that the child live with the mother and that the father have supervised contact initially, progressing to unsupervised.  On 8 February 2006 the father filed a contravention application.  A month later, in April 2006, the mother filed an application seeking suspension of the father’s contact.  A week later, the father filed an application seeking an order that the child live with him.  The matter was transferred to this court in April 2006.  The applications just referred to having been filed in the Federal Magistrates Court.

16. On 30 May 2006, a Form 4 Notice of Abuse was filed by the mother alleging that the child had been sexually abused by the father.  The first of the plethora of family reports referred to by Ms B was prepared by Mr R on 20 June 2006.  Subsequent to that report, and further proceedings, further orders were made in respect of the child. 

17. On 15 May 2007 Carmody J made an order that the child live with his mother and that the father have unsupervised time with the child with orders to be finalised in that respect within 12 months. 

18. Less than a month after that order was made by Carmody J the father filed a contravention application.  A month after that the mother filed an interim application that the father’s contact be supervised.

19. The mother also appealed Carmody J’s orders to the Full Court of this court.  Carmody J ordered that, pending the hearing of that appeal, time between the father and the child was to be supervised. 

20. On 26 October 2007 the mother's appeal was dismissed by the Full Court and, subsequent to that, the father filed an amended response.  On 12 February 2008 it was necessary for Carmody J to issue a recovery order against the mother.  That recovery order is in respect of the incident which the mother herself describes as “the abduction”.

21. At paragraph 11 of her much later report dated 24 February 2009, Ms B says:

    [The father] said that in September 2008 when the police located [the mother] and [the child] they were apparently hiding in the bush in New South Wales.  This was the second time that [the mother] had absconded with [the child] and [the father] reported that when [the child] was returned they (the police) “kind of said don't let this happen again”.

22. Consequent upon the issue of a recovery order by Carmody J, his Honour ordered that the child live with the father and spend supervised time with the mother and that the mother attend upon a clinical psychologist.  Subsequently in March of 2008, Carmody J ordered that the child spend time with the mother with the changeovers to be supervised and the mother to attend upon a psychologist. Later, overnight time was ordered by his Honour with respect to the mother.

23. It will be noted, then, that, by reason of an order made in February 2008, the child was to live with the father with time with the mother as ordered by the court.  On 25 July 2008 a report issued from Ms J, the second of the family reports applicable to this family to which reference was earlier made. 

24. In 2008 it was necessary for this court to issue a recovery order and a warrant of arrest.  Because the whereabouts of the mother and the child were unknown, a location order was made a month later in 2008. 

25. It might be observed that this is the second occasion upon which it has been necessary to seek police intervention to both find the mother and the child, and to bring the child back to the care of the father as ordered by the court.

26. On 21 November 2008, I made orders that all orders for the mother to spend time with the child be discharged and that the mother’s time with the child be suspended for two weeks, and, thereafter, that the mother’s time with the child increase to telephone communication and then be supervised.

27. On 26 November 2008 the mother filed another notice of abuse. 

28. Approximately a month later, procedural orders were made placing this matter in the court's Magellan list of matters, and, on 24 February 2009, the family report by Ms B earlier referred to was released. 

29. At that time a section 65L order was made in respect of supervised time between the child and the mother.

30. Other orders were put in place at about that time with a view to defining such issues as might need to be litigated between these parties to bring an end to the then six years of litigation and conflict in respect of this then six-year-old child. 

31. As might not be surprising, given the history just outlined, the Department of Communities (Child Safety Services) has had significant contact with this family.

32. At the current time, the child is subject to an intervention order with parental agreement.  It is not an order of a type that precludes this court exercising power (s 69ZK).  As might be anticipated in an order of that type, the involvement of the Department has been ongoing. 

33. The primary concern of the mother at the present time seems to emanate centrally from a report prepared by a Ms W who is a departmental officer.  That departmental officer apparently arrived at a conclusion that the child was at risk in his father’s care.

34. The conclusion reached by Ms W was reached in circumstances where she had not interviewed the child with the father.  Nor, apparently, had Ms W made observations of the child with the father.  Most importantly of all, Ms W apparently had absolutely no reference whatsoever to the very lengthy history, including the numerous family reports from expert independent social workers that had been obtained as part of these court proceedings.

35. That report by Ms W was profoundly at odds with other reports prepared by the Department. 

36. As a result, the department determined to conduct an external review of Ms W’s process and ultimate report. 

37. The circumstances just described give background to the most recent appearances of this matter before me.

38. As part of the process just referred to, I ordered, on 26 February 2009, the independent children’s lawyer to file a chronology containing:

    Such detail of the history of the matter, including references to earlier reasons for judgment having regard to the provisions of section 69ZX(3) of the Act as the independent children’s lawyer in his discretion considered appropriate, and for that chronology to be served on each of the parties.

39. That chronology has not at the present time been completed because the events just described effectively took over. 

40. In the context of the events just described, I ordered, on 18 June 2009, that a report which I contemplated receiving from Ms B be prepared prior to the return of this application before me today and:

    That such report make reference to all such documents produced pursuant to subpoena, including but not limited to the reports of the Department of Child Safety dated 13 February 2009 entitled “assessment of harm” and the report of Ms [W] referred to as a “holistic assessment” dated 23 March 2009.

41. I also directed, although not via formal order, the Independent Children’s Lawyer, Mr Carter, to provide for use by the Department in the review process earlier referred to, a list of, and copies of, all material considered by him to be relevant to the assessment and review to be undertaken by the Department.

42. In a letter which became Exhibit 1 in the proceedings today, Ms N, the manager of the Child Safety Service Centre (which is the service centre that has had the conduct of this matter on behalf of this family) refers to the review process to which I have just made reference.  That letter reveals that a number of attempts have been made to access appropriate external reviewers consistent, as I gather, with the processes of the Department in circumstances such as those that I’ve described.

43. Ms N says that she has been unable to identify a suitably qualified external reviewer.  She goes on to say that she is now liaising with her Zone Director, with a view to identifying an internal reviewer who would have the capacity and experience to undertake this matter.  Ms N says she is able to commit to this review being completed by 18 September 2009.

44. Ms B prepared for today’s proceedings a short memorandum dated 7 August 2009.  In that memorandum, Ms B says:

    Having read the abovementioned Department of Child Safety reports, it is my view that, to further assist the court, I will require more information from the department and also from the child and family therapist, Ms [M], who, at the referral of the department, has been engaged in a therapeutic intervention with the subject child -

45. The terms of the type of order currently applicable to the child, from the Department’s point of view includes, clearly enough, a requirement by the Department for the child’s caregiver to attend upon such therapeutic programs as the department considers to be in the child’s best interests.  It is in that context that the referral to Ms M was made. 

46. The court, too, is interested in input from Ms M, who will have the opportunity to work as a therapist with the child, as it were, “one on one”. 

47. Ms B clearly considers that she needs that information from Ms M as an important component of undertaking the report process to which I have earlier referred.  Ms B, in that respect, requests that the court make such orders including the obtaining of an authority, so as to allow her to contact Ms M with a view to discussing the child’s progress and “any prognostic view she may have in regard to his future parenting arrangements and general welfare needs.” 

48. Ultimately, Ms B says:

    In consideration of the above information, it is my view that until the Department of Child Safety has actioned their response, if any, to the reports dated 13 February 2009 and 23 March 2009, and have furnished a further report clearly indicating their findings and outcomes, and I have communicated with Ms [M], and/or received a report from her.  I am not in a position to provide a family report that, in my opinion, will assist the court in forwarding this matter.

49. Those two documents can be seen to found the application made by the Independent Children’s Lawyer that this matter should be further adjourned until a date after 18 September 2009, being the date upon which Ms N has undertaken to provide the report of the now internal review to which reference has earlier been made. 

50. The mother, in that context, however, persists with her application for the child to be removed from the father’s care and to be placed with her brother, with each of her and the father to spend supervised time with him. 

51. In the memorandum just referred to, Ms B says:

    It is further my opinion that [the child’s] time with his mother continue to be supervised in the manner in which it has been described in paragraph 3 of this memo, pending the next court hearing.

52. The references earlier made to those parts of the evaluation contained in Ms B’s report dated 24 February 2009 are relevant in the current context.  In that evaluation, Ms B goes on to say:

    [The child’s] demeanour and affect when in the company of his father was relaxed and happy, and I gained the impression that he enjoyed a secure attachment to his father.  Similarly, it is my assessment that he enjoys a significant attachment with his mother, though this is compromised by [the mother’s] continued and blatant raising of safety concerns with, and in front of, [the child].

    Given his young age, [the child] has not yet gained the appropriate skills, nor the resilience, to counter his mother’s inappropriate behaviour.  Hence, it is my opinion that if [the mother] does not stop her relentless campaign in regard to the alleged sexual abuse of [the child] by his father, she runs the risk of [the child] rejecting her, or at the very least, of developing a very confusing, highly pressured and dysfunctional relationship with [the child].  This will undoubtedly have grave and negative outcomes for [the child’s] future social, emotional and psychological wellbeing.

53. In what might be seen to be a case of, respectfully, “stating the bleeding obvious,” Ms B says:

    It is my opinion that it is in [the child’s] best interest to put an end to these legal proceedings as soon as possible.  It is further my opinion that the parties need to be restrained from bringing on further proceedings without first satisfying the court that there has been a sufficient change of circumstances that would warrant further hearings.

    I am not confident that the mother’s willingness and/or ability to change her perspective in regard to her child’s safety is imminent or even possible without her agreeing to some level of intensive therapeutic intervention.  Thus, I am not confident that she can spend unsupervised time with her son in the near future.  Nevertheless, it is my opinion that every effort should be made to enable [the child] to maintain a meaningful and safe relationship with his mother.  Given that the father has suggested that the contact centre feel that they don’t have the capacity to contain [the mother] appropriately, it may be fortuitous of the court to consider regular supervised time between the child and the mother to take place at the Brisbane Registry, or at least until final orders are established.

54. It is in that context that Ms B ultimately recommends that the child continue to live with his father and that time between the child and his mother be supervised, in the sense that that expression is used in section 65L of the Act, and it is in that context that earlier orders were made by me to that effect.

55. It seems almost trite to mention the statutory requirements in the appalling context of litigation and conflict that this young child has been subjected to.  Nothing I have seen anywhere in the evidence suggests to me that there is any real prospect of that appalling conflict, and the child being subject to the views of his parents and the allegations made in respect of him is likely to cease. 

56. Nevertheless, this task is, of course, undertaken by me, entirely cognisant of the statutory Objects, Principles and Considerations, and I have taken each of those matters which I consider relevant into account when arriving at the decision I am about to make. 

1. Furthermore, I am acutely aware of what the Full Court has said in Goode & Goode, and the necessity for the statutory objects, principles and considerations to be applied, albeit within the context of a significantly truncated hearing such as this, which occurs prior to the opportunity to fully assess, analyse and make findings about all of the evidence and the parties, themselves, which such process can only occur properly at a trial.

2. Given the history which I have outlined, the clear recommendations made by Ms B, and the issues identified by her and by the Department of Communities (Child Safety Services), I would need significant persuasion that there is a good evidentiary basis founding a conclusion that it is in the child’s best interests to remove him from one of his parents and place him with a person about whom the court knows very, very little. 

3. No such evidentiary foundation exists in this case.

4. It is, of course, the case, not only enshrined in the legislation, but has been the case for 30 years, and has been the case for many, many, many years before that prior to the introduction of the Family Law Act, that courts concerned with making orders about the best interests of the children are profoundly concerned about the prospect of children being abused in any way, shape and form.

5. That encompasses the allegations of the mother.  It also includes the assertions made by Ms B about what can conveniently be called emotional abuse.  As I have said, those matters can only be properly ascertained and decided upon at a trial.

6. The court is bound to act upon evidence.  The mother asks me to draw an inference from the fact that she was asked to sign a document on 19 June 2009 by the Department of Communities (Child Safety Services), which she referred to as an agreement about the child. 

7. I am told from the bar table this morning by Mr Carter, who has independent obligations and duties in respect of the child, and who, in that respect, has a positive obligation to obtain relevant the evidence and place that evidence before the court, that he submits that the child is not at risk in his father’s care. 

8. Secondly, Ms D, who is employed by the Department, does the court the courtesy of appearing before this court today for which the court expresses its gratitude. Ms D, too, has obligations, although her obligations arise from state legislation and, in particular, the Child Protection Act (Qld). With Ms D sitting beside him and providing data to him, Mr Carter informs the court from the bar table - as is clear he can do by reference to division 12A of the Act - that the department currently, as at today, does not hold concerns about the safety of the child in the care of his father.

9. In those circumstances, I decline to draw the inference from the matters raised by the mother that she would have me draw and I find that there is a clearly insufficient evidentiary basis for changing the order in respect of the child’s living arrangements that have now been in place for some time.  Accordingly, the Application in a Case filed by the mother on 19 June 2009 is dismissed.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  1 September 2009