Love and Shillington (No. 2)

[2007] FamCA 566

FAMILY COURT OF AUSTRALIA

LOVE & SHILLINGTON (NO. 2) [2007] FamCA 566

FAMILY LAW - CHILDREN - With whom a child spends time - Interim - Separation of siblings - S 121 order

APPLICANT: MR LOVE

RESPONDENT: MS SHILLINGTON

INTERVENOR: MRS SHILLINGTON

FILE NUMBER: BRF 2102 of 2004

DATE DELIVERED: 5 April 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 5 April 2007

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

THE INTERVENOR: In Person

INDEPENDENT CHILDREN’S LAWYER: Mr Waller, Solicitor, as Agent for D A Family Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. For the purposes of the daughter spending time with the Mother, that such time can include up to 5 hours of unsupervised time in any 24 hour period.

1. The Father and Maternal Grandmother facilitate the three children spending time together from 10.00 am Tuesday 10 April 2007 until 3.00 pm 13 April 2007, with such time to be spent at the Maternal Aunt’s, Ms J, residence.

1. The Mother be restrained and an injunction hereby issue restraining her from attending at the Maternal Aunt’s residence, or anywhere else where she knows the children, the two sons will be, between 10.00 am 10 April 2007 and 3.00 pm 13 April 2007.

1. The Father deliver or cause the children, the sons, to be delivered to the Maternal Aunt’s, Ms J, residence at 10.00 am on 10 April 2007.

1. The Intervener, the Maternal Grandmother, will cause the children, the two sons, to be returned to the Father’s residence at 5.00 pm 13 April 2007.

1. The child, the daughter, spend time with the Mother from 1.00 pm 11 April 2007 until 7.00 pm 11 April 2007, with the Mother to collect and return the daughter from the P train station, provided that the Mother attends at the Department of Child Safety, South Queensland Coast, between 3.00 pm and 5.00 pm, to enable the daughter to spend time with her brother, the maternal uncle.

1. The Father facilitate the children, the two sons, telephoning the Maternal Grandmother’s residence each Tuesday between 6.30 pm and 7.30 pm to communicate with the daughter.

1. The Intervener Maternal Grandmother and the Mother ensure that the daughter attends fortnightly counselling sessions with a counsellor approved by the Independent Children’s Lawyer and authorise such counsellor (and this order serves as such authority) to provide any information requested by the Independent Children’s Lawyer to the Independent Children’s Lawyer about the progress of the daughter’s counselling.

1. Leave be granted for the Independent Children’s Lawyer to provide copies of any material filed in these proceedings and Court Orders to the daughter’s counsellor, which will assist the counsellor in counselling the daughter.

1. The Father and Maternal Grandmother facilitate the three children spending time with each other on the fourth weekend of each month, by ensuring the children are delivered to the South Queensland Coast Contact Centre at a time offered by the centre and the Mother and Father share equally the costs of the Contact Centre.

IT IS FURTHER ORDERED THAT

1. In accordance with the provisions of Section 121 of the Family Law Act, the Father, the Mother and the Maternal Grandmother are prohibited from publishing matters, the subject of these proceedings, to any media outlet.

1. The matter be listed for final hearing for seven (7) days commencing 10.00 am on 3 September 2007.

1. The matter be listed for further hearing in relation to ongoing arrangements for contact and for further directions for the filing of material at 9.30 am on 29 May 2007 before the Honourable Justice Jordan.

1. If the Father intends to pursue applications for orders in relation to contact at the hearing on 29 May 2007, he file an application setting out the orders he seeks for contact, together with an affidavit in support, on or before 8 May 2007.

IT IS NOTED THAT

1. The Court requests that, if the Father intends to pursue applications in relation to children’s matters either on the further hearing on 29 May 2007 or the final hearing on 3 September 2007, he file an affidavit by his partner, Ms D, and that he do so on or before 8 May 2007.

IT IS DIRECTED THAT

1. A transcript of today’s proceedings be prepared and retained on the Court file.

1. Copies of the transcript of proceedings on 8 February 2007 and 5 April 2007 be made available to the Independent Children’s Lawyer and to Ms W for the purposes of her updated report.

IT IS FURTHER ORDERED THAT

1. Pursuant to s65DA(2) and s62B, 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.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as Love & Shillington.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2102 of 2004

MR LOVE

Applicant

And

MS SHILLINGTON

Respondent

And

MRS SHILLINGTON

Intervenor

REASONS FOR JUDGMENT

EX TEMPORE

1. As has been observed on previous occasions, this is a most unfortunate case with a most unfortunate and protracted history, where the three children of the relationship, a daughter, younger son, and elder son – the elder son is 13, the younger son is 10 and the daughter is 6 - have, no doubt, had to endure the difficulties associated with their parents' separation, endured the difficulties associated with their mother's past substance abuse, and more recently from the beginning of this year, the removal of the daughter from the father's household and her ongoing separation from her brothers, which has arisen in the circumstances canvassed in the earlier report and the earlier deliberations before this Court. 

2. The parties have very different points of view about the circumstances leading to the daughter's removal from the father's household, the father holding the mother largely responsible for the daughter's presentation and, in that sense, saying the daughter's conduct precipitated that state of affairs, and the mother saying that the daughter was not the cause of the problem, but rather the victim of problems in that household. 

3. As I have said to the parties on this and previous occasions, the very different stories they tell will need to be fully ventilated and considered and determinations will need to be made at the final hearing of this matter when the Court will put in place long term arrangements about the living circumstances of these three children, and about the terms and conditions of any ongoing relationship between these children and their parents.

4. The father has re-partnered and there are two step-siblings in that household, the children of the father's current partner and, of course, it is to be expected that the daughter would have developed a close relationship with those other children.  Again, that is a matter that will need to be addressed by the Court when turning to consider long term arrangements for these children, as will the Court need to consider the nature of the relationship between the father's partner and the daughter, both in the past and in the future.

5. It is my anticipation that all of those matters properly ventilated will probably take the Court many days, and in the meantime I cannot begin to unravel the complexities and determine what has caused or contributed to the current state of affairs.  I accept - really it is common ground because both sides assert this - that the daughter is missing her brothers and her brothers are missing their sister.  I am also inclined to readily accept that the daughter and the step-siblings would be missing one another.

6. There is a less certain question, unfortunately, about the status of the daughter's relationship with her father and his partner.  There were clearly strains in the household in January of this year, as evidenced by the father's own evidence on this point and as evidenced by the information he provided to Ms W, who conducted the report.  And again, very briefly, I simply reiterate that the catalyst to the daughter being removed from the father's household appears to be that the father and his partner had suspected for a long time that the daughter was stealing.  They suspected further that she was doing so at the behest of the mother, and that she was giving any money she stole to the mother, or alternatively she was flushing that money down the toilet at the instruction of the mother.

7. Having taken the daughter to the police - and I believe also having recorded an interview with her, but in any event had taken her to the police – the father’s partner was finding it particularly difficult to deal with the daughter's dishonesty and the fact that she would not comply with house rules and the fact that she was compromising the welfare of the other children.  The father contacted family members, saying that he and his partner needed respite and the children needed respite from the daughter and that the daughter, perhaps, needed respite from them, and he then eventually placed the daughter with the maternal grandmother. 

8. One of the issues for determination is whether the agreement was at that time that that would only be a temporary arrangement, or whether there were no such limitations imposed upon her move.  The Independent Children's Lawyer had the matter brought back before the Court because of that substantial development and, as a consequence, engaged Ms W to conduct a family interview. 

9. As I say, one of the things to emerge from that very brief recount of the history is the current status of relations between the daughter and her father and his partner, there being a suggestion that the relationship between the daughter and father’s partner may be very problematic indeed, and that the relationship between the daughter and her father may be uncertain.  There is evidence from the mother, refuted by the father, that the daughter, whilst she, of course, retains affection for her father, is also apprehensive, given her treatment at the hands of the father and his partner in January, as she might perceive it.  That is another matter that will have to be determined.

10. In such a situation, necessarily, one has significant regard for any more objective evidence about these matters.  The objective evidence that I have is that produced by the Independent Children's Lawyer from the assessment of Ms W, and she appears to confirm that there could be some difficulties for the daughter.  Certainly, the prospect of going back into the father's household with the father’s partner appears to be a prospect that could result in the daughter being quite anxious indeed. 

11. The difficulty is, as I say, this is a matter that needs to be properly evaluated.  In the meantime, I return to one of the very few agreed facts in this case and that is, firstly, that the daughter and her brothers are missing one another, and both the mother and father say to me today that that needs to be addressed.  Both the mother and father say that arrangements should be put in place to enable their children to be reunited, even if it be for a short period, and to have the opportunity to spend some time together.  The Independent Children's Lawyer is of the very firm view that these children need to have that opportunity to spend some time together and that, whatever be the difficulties and differences between the mother and father, the children should not be required to bear the burden of those events and they should not be continued to be kept apart if some viable arrangement can be put in place.

12. As I say, the father fervently believes that the daughter and her brothers should be back together.  He believes that the other two children should be involved and his preference, of course, is to have the daughter returned to the home and have contact with him.  I have just touched upon the at least potential difficulties in that regard.

13. What the Independent Children's Lawyer has proposed is that over the Easter break, all three children be brought together at the home of their aunt, Ms J, who apparently has at various times enjoyed good relations with, and the confidence of, both the mother and the father.  At the same time, the maternal aunt has frankly acknowledged that there have been significant strains in her relationship with her sister related to the mother's alcohol dependency problems, and quite clearly acknowledges that she feels that she has been let down and hurt by her sister from time to time.  She is hopeful for her sister's sake, and more importantly for her sister's children's sake, that the mother's rehabilitation on this occasion can be sustained and long-lasting.

14. Equally, it needs to be acknowledged that, although the father asserts he has had confidence in the maternal aunt in the past, that confidence has been dented by virtue of the aunt’s apparent willingness to support her sister, notwithstanding she is aware of all of the problems in the past.

15. But putting to one side the father's issues, I have had the opportunity to observe and hear from the aunt, and from the information that is before me from all parties, I am satisfied that the maternal aunt is an appropriate person, a responsible person, who is well known to the children and would ensure that their time together is a positive experience. 

16. The mother has informed the Court today that, as much as she lives with the sorrow of missing her sons on a daily basis and as much as she would love to have the opportunity to see her sons, she places as a higher priority the opportunity of these three children to spend time together and, as a consequence, she acknowledges that she will not intrude in the process that the Independent Children's Lawyer puts forward.

17. The father talks about logistical difficulties in driving from the South Queensland Coast to P and financial difficulties and, as I have observed, his reduced confidence in the maternal aunt.  He does not point to any inherent problems in the arrangements, other than to say it would cause him financial hardship.  And, of course, he re-asserts his preference that his proposals should be put in place by the Court.

18. Given the unresolved nature of the matters in issue in relation to the father's household and the daughter, and the absolute premium identified by the Independent Children's Lawyer, by the father, and by the mother, of putting in place some arrangements which would enable these three children to spend time together, I am satisfied that the proposal of the Independent Children's Lawyer at least addresses the most immediate problem of giving these children some respite from their separation from one another, the opportunity to be reunited, and the opportunity to spend some time together, and I hope and trust that, notwithstanding the journey from the South Queensland Coast to P may impose some financial difficulty for the father, that if he is, as he says, committed to the prospect of the children having time together and committed to a focus on the welfare of those three children and their interests as siblings to have that time, that he will appreciate that, in the scheme of things, he is being asked to pay a small price in dollar terms to meet the costs of the journey from the South Queensland Coast to P.

19. The Independent Children's Lawyer has made an oral application today, which is necessarily made at the last moment because of a statement or an assertion set out by the father in his second document, over five pages, which he sent to the Independent Children's Lawyer setting out his proposals, which included an assertion by the father:

    I won't be shy in taking this matter to the national television media if I have to in order to sort this matter out.

    I raised that matter with the father and did not receive a clear response from him.  His view seemed to be that, if the Independent Children's Lawyer and the Court have nothing to hide, they should have nothing to fear from the prospect of the father going to the media. 

20. I share the concerns of the Independent Children's Lawyer, as reinforced by one of the other children's parents, the mother, that the last thing these three children in very difficult circumstances need, is even the remote prospect that one of their parents may see fit to go into the public arena and air their difficulties through the national television media that they have with one another, or their mother has, or anything like that.  At least, it is to be anticipated that some, or potentially all, of the children would be extremely anxious, mortified and possibly emotionally damaged if they were to turn up at school one day, having been the subject of a television media program the previous night, where their difficult circumstances were discussed.

21. The mother consents to an order that she not be permitted to go to the media and, in light of the statements made by the father in his typed document and his continuing assertions which appear to focus on the Independent Children's Lawyer and the Court's failings, rather than the implications for the children, I am satisfied that it is necessary and appropriate that I make that order.

    ORDER DELIVERED

22. Otherwise, in the interests of these three children being able to have their relationship renewed, I am satisfied that the proposals of the Independent Children's Lawyer are the best that everyone can make of a very bad situation.

    ORDER DELIVERED

23. Given the complexity of this matter and the need to immediately address important issues, such as the daughter's ongoing relationship with her father, and where she should live in the medium and longer term, and what contact she should have with her mother if she is living with the father, or what contact she should have with the father if she is living with the mother, and the need to address the circumstances of the other children, this matter needs to be given priority and to be heard and determined as soon as possible so that the mother and the father have the opportunity to present all of the necessary evidence, to test the evidence of the other party, and to enable the Court to receive all relevant evidence from the Independent Children's Lawyer and the Department.  To that end, I am able to list the matter for final hearing from the 3rd to 11 September 2007.  So I have set aside seven days for the hearing of the matter. 

24. I am satisfied that that is too long to leave the question of the daughter’s ongoing relationship with, and contact with, her father, so that there will be a need to reconvene the matter to enable those issues to be addressed and also to make the further necessary directions in relation to the filing of material. 

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan.

Associate: 

Date: