Marsden and Winch (No. 2)

FAMILY COURT OF AUSTRALIA

MARSDEN AND WINCH (NO. 2)

[2007] FamCA 1003

FAMILY LAW - CHILDREN – Application sought by father to change contact supervisors because of their inability to provide supervision pending the determination of an appeal against the trial Judge’s orders preventing the child from spending any time with the father – these final orders were stayed on 22 November 2006 enabling the resumption of time being spent between the father and the child – father had brought an earlier application seeking the same orders to change contact supervisors because of their alleged inability to facilitate time spent with the father and child in January 2007 – in both cases there was insufficient evidence provided to support such a proposition – application dismissed – mother’s application to discharge orders enabling the father to spend time with the child also dismissed – father to pay two-thirds of mother’s costs

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC ¶90-725
Sedgley v Sedgley (1995) FLC ¶92-623

APPLICANT:

Mr Marsden

RESPONDENT:

Ms Winch

FILE NUMBER:

CAF 65 of 2004

DATE DELIVERED:

21 August 2007

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

20 August 2007

REPRESENTATION

Mr Marsden appeared on his own behalf

COUNSEL FOR THE RESPONDENT:

Mr Nash

SOLICITOR FOR THE RESPONDENT:

Mr Eley

Orders

Mr Marsden’s application filed on 17 July 2007 is dismissed.
Ms Winch’s response and the orders sought in relation thereto filed on 9 August 2007 are dismissed.
It is ordered that Mr Marsden pay two-thirds of the costs of Ms Winch as assessed or agreed.
The matter is removed from the pending cases inventory.
Any material produced subpoena which became an exhibit will be retuned by the Court at the expiration of the appeal period to the person producing it, any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Faulks delivered this day will for all publication and reporting purposes be referred to as Marsden v Winch

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 65 of 2004

Mr Marsden

Applicant

And

Ms Winch

Respondent

REASONS FOR JUDGMENT

There were orders made of an interim nature on 23 May 2006 which restrain the father from doing certain things, including making gifts to [S] who is the child the subject of these proceedings, and that restraining order included photographs. I mention this only by way of introduction to the rest of the proceedings. Those were interim orders pending a final hearing which resulted in primary orders being made on 4 August 2006 which were corrected under the slip rule on 30 October 2006. Those orders provided, in effect, that while the child would live with her mother she would not spend any time with her father at all, and Order 4 made on that day provided that:
[The father] may send to [the child] written communication in the form of letters or emails.
(a)To enable this communication to occur, the mother will provide and continue to provide to the father at all times a current address, which may be a PO Box.
(b)The mother may read any such communications before giving them to [the child].
(c)If the mother believes that the communications are intended more as a communication with her rather than [the child], the mother may decline to give the communications to [the child].
The father was ordered to provide a current address at which he could receive communications from the mother about the child and the mother was required in Order 6 to provide to the father written reports at not less than six‑monthly intervals about the child’s progress and about any major events which occur in the child’s life, including but not limited to school reports, photographs and sporting achievements. The mother was also obliged to communicate with the father in circumstances where the child is seriously ill or requires hospitalisation, and Order 8 provided that the father may send gifts to the child on her birthday and for Christmas and the mother will pass on such gifts to the child. Those were broadly the orders that were made on that occasion.
The father subsequently filed an appeal against the orders that were made in the trial, and on 22 November 2006 on the father’s application I made an order staying the operation of certain parts of the orders that had previously been made. The orders made were as follows:
(1)Order 3 partially and Order 10(a) made by me on 4 August 2006 and amended on 30 October 2006 be stayed pending the hearing of the father’s appeal filed on 1 September 2006.
I then made an order which clarified the consequences of one of those orders relating to the payment of some money to the father from an account known as the [named] account. I further provided in Order 3 as follows:
Pending the hearing of the father’s appeal and no longer, the father shall spend time with [the child], born on […] 2002, through and under the supervision of the Canberra Changeover and Contact Centre at Marymead in Narrabundah for periods of two hours each fortnight in accordance with such arrangements as that centre is able to carry out and subject to their ability to meet the requirements and such that there will be no time spent by [the child] with her father during the period from 21 December 2006 until 15 January 2007.
That order was subject to a further application from the father in January 2007 that there be a variation to the order to provide that other organisations might provide the supervision that had been prescribed to have been provided by Marymead, by which short name I will refer to Canberra Changeover and Contact Centre. At the same time the mother applied that the order I made relating to the stay be discharged or dismissed. That application by the mother I refused, the father’s application to substitute either of three alternative support services for Marymead in the order I refused as well. The reasons for my refusing to make the substitution I set out in my judgment delivered on that day but included the following material, and I read it because of its relevance to these proceedings. Paragraph 29 provides:
…The material that he provides in relation to their ability to carry out the orders is limited and inadequate. The understanding of each of those organisations about the background, the orders that were made and the circumstances in which their supervision might be required is also inadequate or non‑existent and I could not on the material before me come to a conclusion, even if I were to consider it to be desirable, that there should be an order for substitution of one of those organisations for Marymead.
There was then an application on that day for an adjournment to enable that information to be put and that application was refused.
The present application before me is an Application in a Case (so-called) filed by the father on 17 July 2007. That application seeks orders as follows:
(1) Supervised contact to be resumed immediately at Marymead or alternative facility as follows:
(a) [C Support Service] /Contact: Mr [P] (and then a telephone number);
(b)[W Support Service] /Contact: Mr [W] (with a telephone number); and,
(c)[G Support Service] /Contact Mr [M]: (and then a telephone number)
(2)Participation of both parties in the Marymead ARCK program, or if the court deems appropriate an evaluation to be done by Dr [S] or alternative located in Canberra. Terms of Reference and documents provided as per [the father’s] annexure “D” in this application. The costs of such program or report to be shared equally by the mother and father.
There were no terms of reference annexed to the application:
There was an Annexure D to the father’s affidavit and there were some proposed terms of reference associated with that which is presumably what the father referred to. I will come back to that in due course:
(3)The mother to provide to the father the report about [the child] “not less than six monthly”, as per final orders of 4 August 2006, and forward to the father the Father’s Day card [the child] made for him in 2006.
(4)The mother allow [the child] to view the appropriate “ecards” the father emails to her.
(5)The father allow [the child] to display in her room as she wishes the photographs of [the child] and her father.
(6)One phone call per week be allowed to [the child] from her father, day and time to be negotiated.
(7)The respondent mother to pay the costs to the applicant father of this application and reasonable associated expenses of legal counsel.
In support of that application the father filed an affidavit on 17 July 2007, to which I have already indirectly referred, which sets out in some respects the history of the matter, and I will return to the evidence in a moment, and he also sought and was granted leave on the hearing of this matter on 20 August 2007 to rely upon affidavits from Mr P and from Mr W. These, it may be recalled, were people who were the contact person for two of the support services. He also sought to rely upon documents from the third of those support services but the material was not provided in an affidavit form and in the circumstances was rejected. The affidavits themselves were relatively short, but again I will return to their form in due course. In addition, the father sought and was granted permission on the day of the hearing to rely upon an affidavit from Mr N, and that short affidavit was admitted into evidence and relied upon and Mr N attended at short notice and was the subject of cross-examination. In addition, the father attempted to tender at the hearing documents which appeared to be reports in relation to two days of the time that the child had spent with him at Marymead. These documents were produced from material subpoenaed from Marymead but in the end were not admitted into evidence for the reasons given at the time.
The mother filed a response on 9 August 2007 in which she sought the following orders:
(1)       That the Orders made on 22 November 2006 be discharged
(by which I interpreted her to seek orders relating to the children made on that day to be discharged which were in the nature of the stay in part of O 3 as I have referred to previously)
(2)      That the father’s application filed on 17 July 2007 be dismissed
(which is the application currently under consideration by the Court)
(3)      That the father pay the costs of and incidental to that application.
In support of that, she filed an affidavit of some length from herself setting out a history of what had occurred in relation to the time that the child spent with her father and various other matters which asserted, among other things, conduct which her counsel described as “stalking” and “harassment” on the part of the father which he said justified the application for a suspension of any time at all between the child and her father. In support of her application she also filed an affidavit by Dr A, who is a treating mental health practitioner, who sets out in a report the consequences that she believes have affected the mother, particularly the fact that:
The ongoing nature of the conflict requires that [the mother] continue supportive psychotherapy as required and she would -
that is, the mother -
would benefit from support to assist her to reconstruct a more personally fulfilling lifestyle -
and certain arrangements were suggested in relation to those matters.
The essence of the father’s application as he explained it to the Court was that the mother had interfered in combination with her lawyers with the Court’s orders and that the authority of the Court had been flouted and circumvented by the actions of the mother in relation to Marymead. This was based on a suggestion that Marymead’s actions which had precipitated the application in the first place of suspending their supervision of any time that the child might spend with her father had been brought about by reports made by the mother to that organisation and by their making what the father would regard as a unilateral determination without appropriate consultation with him that the time that the child spent with him or spends with him should be terminated.
The application seen in that light might properly have been regarded as an application that the mother be dealt with for contravention of a Court order but was not so framed, nor was it presented in that way to the Court. Or it might also have been regarded more properly as a fresh application about the question of the time that the child would spend with her father. It is totally inappropriately brought as an Application in a Case because there are no final orders pending. There is an appeal pending but it ought properly to have been a new application. I do not think that it is appropriate to take any point about the inappropriate form and no point was taken on behalf of the mother and I treat the application before me as, in effect, a new application and will deal with it in those terms. That requires that I should not only have regard to the principles outlined in the decision of Rice v Asplund (1979) FLC ¶90-725 which would require that there should be some event which has brought about a significant change and therefore necessitated or reasonably justified a further application to the Court in relation to a matter that had already been determined, and also the provisions of Pt VII of the Family Law Act 1975 (‘the Act’) as amended last year.
In relation to what might be described as the Rice v Asplund (supra) point, while the connection might be relatively vague, it seems to me reasonable to say that in the circumstances the action of Marymead might reasonably justify the bringing of the matter back to the Court. I say ‘might’ because at least on one version of the evidence before me, the actions of Marymead were precipitated by, in part at least, the father’s failure properly to comply with previous Court orders. In those circumstances it would seem somewhat inappropriate that someone should be entitled to rely upon his or her own wrongdoing to create a new circumstance which in turn would justify an application to the Court. Leave that to one side, it seems to me irrespective of whatever may be the appropriate construction of the father’s conduct, and for reasons I will come to in due course it probably does not matter very much, the application was before me, was heard, was conducted and I now propose to deliver judgment and make orders accordingly.
So far as the Act itself is concerned, I wish to outline briefly the procedures I will undertake to - indicating as I go through those procedures some of the matters that would bear upon my final decision. I will then review the evidence before me in the light of those procedures and practices.
First, I am obliged in considering any matter relating to children to take account of the objects and principles outlined in s 60B of the Act. These are well known to the parties and I do not propose to read them again but to say that a consideration of all matters under this part of the Act is undertaken in the overarching principles set out in that section. However, as s 60CA of the Act says:
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
I pause at this point to indicate that because of the peculiarities of drafting, in fact the parties were probably not properly before the Court in any event. Section 60I of the Act as from 1 July 2007 requires that those who file an application in this Court - and I will come back to the precise meaning of that in a moment - must first have attended upon a family dispute resolution practitioner and have engaged in a process, before that practitioner, of genuinely attempting to resolve the matters in dispute before them. It is only upon the filing of an appropriate certificate that the Court is justified, subject to certain exceptions, in proceeding. Sub-section (7) of s 60I reads as follows:
Subject to sub-section (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under sub-section (8). The certificate must be filed with the application for the Part VII order.
There is currently a measure of disagreement between Federal Magistrates and Judges of this Court about the precise meaning of that section about whether a failure to file a certificate at the time of filing of a document would preclude the matter proceeding or whether it is only the hearing of the matter that would be precluded by a failure to file a certificate. The certificate may provide a number of factors which are not directly relevant to these matters, but there are exceptions which were referred to in sub-section (7) which are set out in sub-section (9). The requirement for a certificate is not necessary if the order is to be made by consent - that is clearly not applicable here - or:
…
(b) The Court is satisfied that there are reasonable grounds to believe that:
(i)there has been abuse of the child by one of the parties ...; or
(ii)there would be a risk of abuse ... if there were ... a delay in applying for the order; or
(iii)there has been family violence by one of the parties to the proceedings; or
(iv)there is a risk of family violence by one of the parties to the proceedings.
I am not satisfied that any of those conditions is satisfied in relation to this application at this point.
(c) all the following conditions are satisfied:
(i)the application is made in relation to a particular issue;
(ii)a Part VII order has been made in relation to that issue within the period of 12 months before the application is made;
(iii)the application is made in relation to a contravention of the order by a person;
(iv) the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order.
Notwithstanding my categorisation of the present application in part as an application about contravention, in my opinion it was never so presented, nor were the circumstances set out in s 60I(9)(c) fulfilled in relation to this matter:
(d) The application is made in circumstances of urgency.
I propose in part to rely upon that section although the urgency is to some extent the construct of the parties rather than the circumstances themselves:
(e)one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution …
and various reasons are given, and I think that in itself may also provide a reasonable basis for applying exemption, or:
(f) other circumstances specified in the regulations are satisfied.
The Regulations, so far as I am aware, have not yet been promulgated, but if they have, they are not directly relevant for the purposes of these proceedings.
Hence, as a precondition to my hearing this matter I should have to have either been given a certificate that the parties had undergone the appropriate dispute resolution process or alternatively satisfied myself that one of the exemptions applied. In my opinion, for the reasons I have just given it seems to me that I could reasonably hold that there should be an exemption based on grounds of urgency or on the basis that one or more of the parties, in particular in this instance the mother based on the evidence that had been provided by her current treating practitioner, was unable to participate in those sorts of proceedings notwithstanding that the father’s application seeks, in effect, that the parties do engage in such proceedings in relation to the child at the present time and the time that she would spend with him at Marymead. Accordingly, the matter might properly proceed.

I note in passing that a failure to comply with those requirements will not affect the validity of any order I should make in relation to this application, which tends to make all of the exercise I have just gone through seem to be somewhat nugatory. Sub-section (11), however, of s 60I applies. Under s 61DA, the primary position that I must adopt when considering any application for a parenting order is to -
apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child ... has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family ...; or
(b)family violence.
Sub-section (3) reads:
When the Court is making an interim order
and although this purports to be an application for an interim order, it is not -
the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
And subsection (4):
The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
I indicate for the purposes of these proceedings that in my opinion there is sufficient evidence before me which would justify the rebuttal of the presumption. It is quite clear from the hearing that has previously occurred and from subsequent proceedings that the parties remain in continual and continued conflict and to suggest that in those circumstances it would be appropriate for them to share parental responsibility is not only meaningless but inappropriate. For those reasons therefore I do not propose to apply that presumption. If I did apply the presumption, which I do not, then it would be necessary for me under s 65DAA to consider whether it would be in the child’s best interests to spend equal time with each of the parents or substantial and significant time. I had indicated before that in my opinion the presumption does not apply so I have no obligation as such in those circumstances to consider those particular propositions. However, I indicate that I have nevertheless given consideration to each of those matters in the circumstances of this application.
In my opinion, it is clearly inappropriate in the circumstances of this application that the child should spend equal time with each of her parents or substantial and significant time. In coming to that conclusion I rely in part upon the reasons that I advanced in my primary judgment from which these proceedings flow. Equally, in the circumstances that have applied since and apply today, it would not be appropriate for those conditions to be applied as they are defined under the Act, and, I might add not, only is it inappropriate, they are also matters that neither of the parties seek before me this day.
In determining what is in the best interests of the child, the Act gives me guidance of a prescriptive kind under s 60CC. The primary considerations are stipulated to be:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In this regard it is urged upon me by the father that there is a significant benefit to the child in her having a meaningful relationship with him. It is urged upon me by the mother that there is no such benefit to the child in having a meaningful relationship with her father at least in the circumstances as suggested by the father. It is a factor that I am obliged to take into account but only in the circumstances of the applications before me which do not seek more than the restoration on the part of the father of very limited time that the child might spend with him and this in a context where an appeal is to be heard in relation to the primary denial of any time for the child with him on 3 October 2007. In addition, it seems to me that as a primary consideration there is no reasonable prospect that the child would be the subject of psychological abuse or neglect or physical abuse or neglect during the time that she might be with her father in the supervised circumstances that were sought. That, however, is in part dealing with the application made by the mother seeking complete termination of all forms of contact between the child and her father pending the hearing of the appeal. I will return to the evidence in support of that matter in due course but I note that it is a matter to which I must give primary consideration.
The additional matters under s 60CC(3) to which I must give consideration are in some cases not applicable in this matter but I will go through them briefly and indicate my approach to each of them.
In sub-paragraph (a), this is not a matter in which I am satisfied that I am either in possession of or have any basis for relying upon the views expressed by the child about what she wants. Both father and mother express different views about the child’s approach to the time she spends with her father, the father being unrelentingly optimistic and positive about the time, the mother being equally unrelentingly negative about the time except to the extent that she has reported a number of comments from the child which the father I think reasonably could interpret as being positive. However, given the child’s maturity and level of understanding or perhaps my lack of any evidence about those factors in relation to this application, any weight that I could possibly give to her views, even if I were clear as to what they were, would be very small.
Sub-paragraph (b) is the nature of the relationship that the child has with each of her parents. Again, notwithstanding the relatively extensive affidavits filed by each of the parents, I am not clear what is the nature of the relationship of the child with her father. The father asserts it is a good relationship, the mother says it is not and it has a deleterious effect upon the child’s health and wellbeing. I am unable in the circumstances of this matter to form any clear opinion about which of those views ought properly to be regarded as accurate. In addition, the father asserts that the relationship between the child and her father and her mother is at least symbiotically poisoned by the mother’s anxiety in relation to the father and to the whole concept of the time that the child spends with the father and that this may be, or is, the cause of the child’s symptoms as described by the mother in relation to the time that she spent with her father. Again, I am unable to form any opinion about that. The father is neither qualified, nor even particularly articulate about this aspect of the matter and I could not form any conclusion about that on the evidence before me.
Sub-paragraph (c) is:
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
I would have to conclude in these matters that neither parent is the slightest bit interested in encouraging a close relationship between the child and the other parent. The father would deny that in relation to the mother but in my opinion his continued conduct leads to a conclusion that his ability to encourage the child in this regard is very limited indeed. It is not a factor which has featured heavily in the evidence before me and I do not regard it as having any effect upon my determination:
The next factor is the likely effect of any changes in the child’s circumstances, including the likely effect of any separation from either parent. This is really what this matter has been all about. The father has argued in circumstances where all time was denied to him by my primary order and where he had appealed that it was necessary for the relationship to be continued even in an attenuated form pending the determination by the Appeal Court of his application for appeal. The staying of the order I made in the primary case reflected an acceptance in part of that proposition based on the fact that the father’s appeal should not ultimately be rendered fruitless by circumstances that had occurred before the appeal was actually heard. It is a factor which is at the heart of this matter and I will deal with it in due course but I must deal with it in the context of the information before me and the applications of each of the parties and what is capable of being carried out. I might add there is no evidence before me from any person, from the father, the mother or from any qualified professional about what effect separation from the father pending the appeal would have on the child and I am only relying in part upon the assertions of the father to suggest that that is a matter that ought properly to be in issue before me.
A further matter which brings about difficulties in these matters is sub-paragraph (e), which relates to the practical difficulties that are associated with the time that the child spends with the father. It is essentially those practical difficulties which have precipitated this application because of the unwillingness of the supervisory body to continue in that function. Again, it is a matter that will need determination on the evidence before me and I will come to that.
The capacity of each of the ... parents ... to provide for the needs of the child, including emotional and intellectual needs.
I am doubtful in some respects whether either parent is capable of providing those needs at the present point. In my opinion, it is quite clear the father has very little concept of the effect of his actions. This is demonstrated by the nature of the correspondence that is annexed to the mother’s affidavit, which is asserted to be two documents out of 41 sent by the father to the child. The documents themselves are superficially both innocent and possibly even appropriate. However, in the circumstances of this matter, the fact that the father plays upon, and it is quite clearly playing upon the fact that he was alone on his birthday and that he was sad and that he was providing contact numbers for the child to contact him and expressing his desire to spend time with her was both inappropriate, inconsiderate and in my opinion disregarding of the needs, emotionally and otherwise, of the child in the circumstances of this matter. They were primarily matters which are appropriate in many father-child relationships but in this matter demonstrated on the father’s part an understanding only of his own needs and not of those of the child. Anyhow, that is part of it.
From the mother’s point of view, whether her conduct is based on her own needs brought about perhaps by a long period of difficult ending of the relationship with the father and his continued conduct, whether intentional or otherwise, which clearly has an effect on her and her life is set out in the decision of Sedgley v Sedgley (1995) FLC ¶92-623 to which I will refer in due course. Whether she is at present capable of providing for the child’s emotional and intellectual needs is also, in my opinion, somewhat in doubt. I do not say that in any primary sense in that I do not doubt that the child will receive from her mother such support as she reasonably needs. However, the mother’s ability properly to support the child in an emotional way is at present compromised by the proceedings before the Court and by the emotional imposition she feels from the father even if the father does not intend to make such an imposition.
The background of the child is not a matter that needs to be particularly brought into account in these proceedings. She is not an Aboriginal child or a Torres Strait Islander child in accordance with sub-paragraph (h).
I have commented in part on the attitude of each of the parents to their child and to the responsibilities of parenthood and will do so in relation to the evidence itself a little more thoroughly in due course.
Sub-paragraph (j) relates to any family violence and sub-paragraph (k) to any family violence order. There is in existence an apprehended violence order which was obtained in the Magistrates Court in Canberra. It does not directly bear upon these proceedings, although the father’s conduct of and in relation to his attendance at Court about that is asserted by the mother to be an instance of stalking. I indicate in passing that I do not accept that the evidence before me would support such a conclusion, although it seems to me that it is at least likely that the father’s presence is something that he occasionally imposes without much consideration of the effect it might have on the mother. I do not mean by that of course his attendance at the Magistrates’ Court, which was obligatory, but his conduct afterwards.
Somewhat quaintly the Act says I should take into account:
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
One and all in this courtroom may say a hearty amen to that as an aspiration but the prospects of its occurring I have to say are relatively remote.
And, finally, I am to take account of any other fact or circumstance that the Court considers to be relevant.
The proceedings before me have certain difficulties in their own right irrespective of the principles that I have outlined in their application to the child and to the parties. The terms of the order itself that is the subject of comment and application do not require that the Canberra Changeover and Contact Centre at Marymead provide the supervision that is the subject of the order. This is appropriate in its form, and I have read out the terms of the order earlier in my judgment, because of the nature of the institution and the fact that this Court has no power to bind that institution to do anything. It is a separate service provided which is invaluable to many people who come to this Court but it is not in any way a contracted arm of this Court, nor is it an extension of government, nor does an order of this Court seeking to enlist the support of that organisation to supervise, constitute an imposition of a statutory duty on that organisation. Accordingly, a requirement as requested by the father in his application that supervised contact be resumed immediately is one that this Court has no power to enforce. The father did not seek, nor would it have been appropriate to do so, that Marymead be joined as a party to these proceedings. Even if I were to make such an order, it would have to have been done in circumstances which were denying to that organisation appropriate natural justice because they have had no opportunity to be heard. In my opinion, the first order sought by the father, at least the first part of the first order sought by the father was beyond the powers of this Court and was therefore invalid for that reason alone.
The second matter was the proposition, not particularly articulately expressed, that in effect the orders of the Court (which would have facilitated at least Marymead’s provision of the supervision that the father seeks or at least one way of spending some time with his daughter) were frustrated in their implementation by the mother and her lawyers. In that regard it is perhaps apposite to look at both what Marymead said and also what the parties themselves say in relation to Marymead.
Annexed to the father’s affidavit is the letter from Marymead to him in which they terminate or indicate that they will suspend the time that they would be providing for supervision. The letter needs to be read in its entirety to demonstrate two things: first, the reasons why the organisation say they are suspending the supervised contact or visits, and second because the letter is in itself somewhat confused and that needs to be the subject of some consideration by me. The letter reads relevantly as follows:
Dear Mr [Marsden],
This letter is being sent to Ms [Winch] and both parties’ solicitors as well as yourself. This letter is to confirm that the Marymead contact program has temporarily suspended supervised visits between Mr [Marsden] and his daughter [S] effective as of 24 May 2007. This was discussed with Mr [Marsden], Ms [Winch] and their solicitors in person or by phone last week. The decision has been made due to concerns regarding the effect on [S] of these visits based on information provided by Ms [Winch].
That is the first of the reasons given.
In addition to the concerns for [S’s] wellbeing, it was brought to our attention that Mr [Marsden] placed items, including an email and a photograph, into [S’s] bag during the visit on 12 May 2007 without the knowledge of the supervising staff. The current Court order states that [S’s] mother may read any communications from Mr [Marsden] before giving them to [S]. It also defines the communications as “written communication in the form of letters or emails”. Our understanding of this order is that:
(a)Mr [Marsden] may not send home photographs with [S]; and
(b)he may not give [S] any written communication directly without a chance for the mother to read it first.
[S] also took home some “wishing stones” which Mr [Marsden] gave her during the visit. This is also outside the current Court order which specifies when Mr [Marsden] may give [S] gifts. We are therefore giving warning that if any of these things happen again should visits resume, Mr [Marsden] will no longer be able to use our service.
I pause to comment that what this suggests is that although in my opinion Marymead have taken a relatively judgmental role and determined that there had been in some way a breach of the Court orders based, it would appear from their own statement, on information provided primarily by the mother, they are not saying that that is a reason for their suspension of the service but merely provides a threat that, if it should recur during any subsequent visits, that would be a reason for terminating their services. That deals in part with the questions raised by both parties of the appropriateness of the father’s conduct and I will turn to that again as well in due course. The letter concludes as follows:
As a service that most importantly has a commitment to act in the best interests of the child, we recommend that [S] be seen by a suitably qualified independent professional to determine the effect, if any, on [S] of ongoing visits. We are therefore suspending visits until such an assessment is done and it is deemed appropriate for supervised visits to be recommenced.
What the letter says, in effect, are two things: first that the decision to terminate the supervised visits was based upon the effect that Marymead determined the visits were having on the child. Whether or not that is right, that is the purported first reason given. The second is not so much a reason but rather a condition which says, “We are prepared, in effect, to resume providing the supervised visits or the supervision for the visits after [S] has been seen by a suitably qualified independent professional” – the child, I might add, not anyone else - “to determine the effect on her of ongoing visits,” and they would only lift their suspension when the “assessment is done and it is deemed appropriate for supervised visits to be recommenced”.
The curiosity of that statement, it would seem to me, is that who is to deem it appropriate? What are the criteria applicable? What is the process that would be instigated to achieve it? And the fact that it seems in the circumstances that Ms J, the Manager of Family Programs, who wrote the letter, believes that it is the child that is to be assessed by the suitably qualified independent professional and not, as one might logically assume, the parents and the child either in combination or separately. Nevertheless, the matter comes back to this: this Court has no power to order or control Marymead Child and Family Centre, and whether the reasons they have given for their suspension of their supervision are valid or based on a flawed process or arbitrary or whether they are in the circumstances justified is to some extent irrelevant. It is only with their cooperation that the existing order can work.

The question that is, however, a subsidiary question which does need to be asked and answered is whether each of the parties was obliged in those circumstances, notwithstanding the potential interpretation of Marymead’s actions as possibly being unreasonable or arbitrary, to overcome that by seeking the assistance of an independent assessor. One would think in the circumstances of the conflict between the parties that this would have been a reasonable thing to consider, and in fact it was by both parties - to their credit.
That gave rise to a determination, as is set out in the affidavit by the mother, that the appropriate step to be taken was that if there was to be a further independent assessment, it should be conducted by Dr W, who was the Court‑appointed expert in these proceedings. The father was opposed to the appointment of Dr W for what he described several times in I suppose an attempt to lighten these proceedings, as 9,000 good reasons - being the cost he asserted of the obtaining of a further report from Dr W, and further that because he, the father, had cross-examined Dr W for what he recalls as being four hours during the course of the hearing, and that Dr W would naturally be somewhat, I imagine he believes, prejudiced against him.
More practically, the father says that someone in Canberra could be found who would be able to undertake the assessment at less cost and more rapidly. There are some difficulties with that proposition on the evidence because Dr W was available to deal with the matter promptly but of course not at a cost that was acceptable to the father. Dr W suggested Dr S might undertake the task. He was unavailable and suggested that perhaps Dr C might undertake that task. Dr C provided a letter which briefly set out some of the matters that would perhaps be relevant as follows - and as it is only a short letter, I will read it:
Dear Mr [Marsden],
Further to our telephone conversation this morning, I can offer to assess the relationship between yourself and your 5-year-old daughter [S] in my clinic. This will include the attachment sequence, free play sequence and a short interview re the contact issues and their resolution. The cost for clinical work and report writing is the Australian Psychological Society rate of $192 per hour. I anticipate that the clinical observation will required -
so written -
a single two-hour period, the interview a separate one hour and a concise report writing period of two hours. I have available clinical hours on Monday afternoons from 3 pm to 5 pm in August. Please contact me if you wish to proceed on […].
That letter of course does not describe Dr C’s qualifications, although they were not in dispute before me and Dr C has given evidence in this Court on a number of occasions, although in my experience not recently. It, however, represents what may have been a misrepresentation of what had been required by Marymead in that Marymead was not seeking that there be an assessment of the relationship between the father and the child and it was not requiring that there be “a short interview re contact issues and their resolution”. It was requiring an assessment about whether the continued supervised visits of the child with her father were operating in the best interests of the child.
In addition, Dr C seems to be suggesting that she would undertake the work in her clinic, which may or may not have been appropriate, and certainly would have required some relaxation of the orders previously made and would not really have provided much of an answer about whether or not the visits and the circumstances in which they were occurring were appropriate for the child or in her best interests.
Accordingly, Dr C in the end may or may not be available, may or may not be suitable and I have no evidence about whether or not she understands what the task is that is being set for her might be. I will return to that matter again.
In summary, the father would not accept the mother’s suggestion. The mother would not accept the father’s suggestion. The matter came to a stalemate and at the end there is no evidence before me which would tell me either what it is in the nature of an “independent assessment” that Marymead requires, who might be available, and when they might be available. I am conscious at the same time that the appeal for the parties is due to be heard by the Full Court on 3 October 2007 and whether or not in those circumstances this process could be completed before the appeal is heard is at least problematic.
The father in his desperation, and I think it is reasonable to categorise it in that way, sought that there would be an alternative, if Marymead were unable or unwilling to carry out the supervision then there should be an alternative facility to enable the time that the child spends with him to continue at least until the appeal. In this regard, as I said previously, he provided affidavits from two of three potential carers and those affidavits are before the Court. The affidavit from Mr P of C Support Service is, in my opinion, of no assistance whatsoever. I carefully read out the material in my last judgment when this matter was before me in January 2007 to indicate that I had previously given to the father a very clear understanding of what matters I would need as a matter of evidence before I could make a decision. The affidavit of Mr P provides none of that material and I could not on the basis of his affidavit, even if I were minded to do so, make any order that would appoint his service as being an appropriate supervisor.
The affidavit from Mr W is in a relatively similar category. The difference is that in relation to Mr W, he sets out what his service provides without detailing what qualifications they have to provide it. But if I assume those for a moment, annexed to the affidavit is the letter that the father wrote to Mr W apparently to explain the nature of the service required and to provide some of the background that I had referred to in my judgment in January as being necessary for an understanding by the supervisor of the circumstances in which the supervision was to take place. I took the time to read that letter carefully before commencing my judgment and in relation to it I make these following comments:
The letter is self-serving, self-justifying, self-righteous and omits significant parts of the history of the parties. It provides new material that has never been before the Court about the justification for the father’s actions in the past. These are substantially irrelevant in any event to the proceedings before this Court today. The letter is by any definition one which fails properly to provide any indication of the difficulties associated with the supervision and the matters set out in my previous judgment.
I do not suggest that the father has deliberately set out to mislead and I believe that he set out in his letter to comply with what I had suggested should be done previously. However, the letter fails significantly in that regard and I can have no confidence whatsoever that Mr W or his organisation or those employed by him - and I am not sure which, if any, of those persons, legal or corporate or personal, would be conducting the supervision - would have any understanding of what is required or how it is. I accept, as the father points out in his letter, that the service to be provided may not require an in-depth understanding of the history of the parties. However, the fact that there have been two, if not more applications - three applications before this Court since the final judgment is indicative that this is not the usual case and that the circumstances in which supervision is required as detailed in previous judgments of this Court ought properly to be brought to the attention of any person who might be undertaking supervision.
To his credit, the father suggests that the alternative supervisors ought only to be employed until such time as Marymead can be brought back online on the basis, and again to his credit, that the child is used to the circumstances of Marymead and Marymead are used to the parties. That is fair enough, but there is no basis on any of the evidence before me which would enable me to make an order of the sort that he seeks appointing an alternative supervisor. The reasons I have given, in my opinion, preclude my doing so.
The next matter that the father seeks is that the parties be ordered to participate in the Marymead ARCK program. This was not mentioned by Marymead in their letter suspending the supervised visits. It was, however, the subject of evidence from both the father and from the mother. In this regard, the father expressed his desire for that process to occur, saying that it had been offered by Marymead as an alternative to some other form of assessment. But when I look at his evidence carefully, I am not sure that his reported words as they are of Marymead are in that category, and I refer particularly to paragraph 13 of his affidavit. But in any event, the mother in paragraph 56 says, in effect, as I commented previously when I was reviewing the law, that she feels that there is no point in the parties having any further mutual programming of this sort.
I have no evidence before me about the nature of the program. It is not stipulated by Marymead as being the reason for their suspending the program or as a condition for its reinstatement and in those circumstances it is not an appropriate order for me to make, particularly as an appeal is pending, and whether or not there is a resumption of any relationship between - any direct and personal relationship between the father and the child is going to occur. Accordingly, that part of the husband’s application must fail.
The third matter sought by the father was that the mother be obliged to provide the reports that were ordered, as I read out previously, on a not less than six‑monthly basis. That particular application was abandoned by the father in the course of these proceedings because in fact the report had been made outside the nominated period but nevertheless made, the mother suggesting in her affidavit that she thought the appeal would overtake it. I am not sure that I agree with her interpretation but nevertheless it is not an issue before the Court.
The fourth matter the father seeks is that the mother allow the child to view the appropriate ecards he emails to her. The form of this application is in itself difficult. It pre-supposes that there is some objective determination of what constitutes appropriate ecards. It would seem inherent in the father’s application that he is the one to determine what is appropriate. For the reasons that I have outlined in brief before and I have indicated in the form of the orders that I have given, it seems to me that the father is not the appropriate judge of what is “appropriate”. Curiously, however, although there is a reference by him to that, the order I made itself does not prescribe that the emails themselves should be appropriate. It probably should make that provision but does not do so. The order provides that emails or correspondence directed to the child will be handed on by her mother provided that the mother does not believe - and I am putting it negatively rather than the positive way it is set out in the order - provided the mother does not believe that it is a communication intended more for her than for the child.
Now, the interesting examples given by the mother annexed to her affidavit, which were the ecards sent by the father, in my opinion would fall within the category of being communications appropriately considered to be directed to the child rather than the mother, hence would not in my opinion have failed the test of the order I made on 4 August 2006. Nevertheless, on the father’s test of what is “appropriate”, in my opinion they were inappropriate because of their content. It is interesting in this context that the parties seem to be agreed about the general view of the matter but not about the application of it. In any event, I do not propose at this stage, given that this is what amounts to a fresh application, varying an existing order when an appeal is pending in relation to those orders generally to make any variation to it. In my opinion, the order is as it stands. The mother is obliged to pass on communications which she believes are intended as communications with the child.
The subjective nature of the judgment would preclude in most cases I have to say the father from being able to challenge the mother’s determination about that matter. Those who were present may recall that I indicated some difficulty with the order in the first place when I made it based on the fact that it seemed to me there was very little that could be said in the way of assistance to provide any objective criteria that would enable this situation to occur. I had reflected to myself that I had made the order in hope rather than expectation and that, sadly, that hope had not been realised by the parties who seemed to be unable properly to cooperate on these matters. That I might say is the fault, in my opinion in these circumstances, of both parties, not of one or the other. However, there is no basis for me to change the order at this point.
The father also seeks an order that would allow the child to display in her room if she wishes - and I emphasise the words “as she wishes” - the photographs of the child and her father. He in fact has no evidence other than that which the child has told him that in fact she has not displayed the photographs, and assuming that what the child has said to the father is accurate, in any event there is no evidence that she wished to display the photographs in an appropriate way as the father seeks. In any event, there is no prohibition in the orders that I have made of her displaying any photographs in her room and it would appear that the mother’s evidence does not support the proposition that such photographs are not displayed in any event. All in all, there is no basis for me to make any order as sought by the father in relation to those photographs.
The question of the telephone calls was the subject of specific consideration by me in my primary judgment. There is no order that would permit such telephone calls. My recollection is that I made an order that was - or made no order specifically to exclude that. It is a new application. In those circumstances I decline to make such an order pending the final appeal, particularly in the circumstances of the unfortunate relationship between the parents of the child. Accordingly, in my opinion, the applications as constituted by the father should all be dismissed and I so dismiss them.
I turn then to the mother’s response which sought orders that the stay order be discharged and that this application be dismissed. The second part of it has been the subject of my determination already. The first part is as follows:
Her counsel submitted to me that the stay order should be discharged based primarily on the fact that the husband’s conduct constituted harassment and that the mother was in fear of the husband and continued time that the child spent with her father even on a supervised basis would constitute something which would affect her ability to function effectively as a mother. He referred me to the decision of Sedgley v Sedgley (supra) and in particular to a paragraph on page 82,259 which reads as follows - this was a decision of their Honours Lindenmayer, Kay and Moss JJ. Their Honours say:
Whilst the welfare of the child might require some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child.
The principle set out in Sedgley (supra) is of course undeniable. Equally undeniable is that ultimately it is what is best for the child that must be brought into account.
The conduct alleged about harassment is specified as being in part stalking. This relates to two incidents particularly. One is an incident where the mother asserts the father having “improperly” - and it is her word, not mine - extracted from the child details of her school, found that the father on his bike was near the school, in fact she was able to see him very closely as she drove past him. She specified the day. The father denied that he was there on that day and called in evidence, as I suggested previously, Mr N, who in what must take the prize as one of shortest affidavits I have seen in this Court for some time said relevantly in paragraph 2:
On Tuesday, 27 March 2007, from 5 pm to 7 pm I went mountain bike riding with [the father] at Majura Pines in Hackett.
Accordingly, there was on that basis a conflict of evidence. The father suggests that he has some corroboration for his assertion that he was not near the school on the day. The mother was not the subject of cross-examination and she asserted that there was no doubt, as her counsel expressed it, that she both would recognise the father and did, and gave evidence about it.
I pause to comment that the father’s failure to cross-examine the mother is not, as it is in some cases, a failure appropriately to challenge the evidence of one party, it was a deliberate decision undertaken by him on the basis that he did not want to cause, so he said to the Court, any further distress to the mother. I do not therefore in this instance regard his failure to cross-examine as in some way a corroboration of the proposition that his evidence was less believable than hers.
In summary, I do not find that the evidence of the mother on this point is in itself inherently believable. It seems to me that after the time she spent with the father it is reasonable to assume that if she saw him in close proximity, as she suggests in her affidavit, that she would recognise him. Equally, I found nothing in the evidence of Mr N that would lead me to conclude that he should not be believed in saying that he was bike riding with the father at the relevant time. In those circumstances I cannot make any determination about whether or not the incident asserted by the mother occurred and I make no finding because I am unable on the evidence to come to any conclusion on the balance of probabilities or otherwise about whether the incident occurred. It may have occurred on a different day. The bike riding may have occurred on a different day. But on the evidence as it is before me I make no determination.
The second incident that was put forward as demonstrating stalking by the father was the incident related to the apprehended violence order application. On this occasion the mother asserts that when she emerged from the hearing the father’s van was parked a few cars away from hers and that he was sitting in the car. She asserts that this was on his part an intentional act which was designed to cause her distress. I cannot find on the evidence that this is so. I am suspicious, I suppose, of why the van was parked where it was - if it was. The father says he does not know where he parked. In any event, there is no evidence that would support the proposition that this was part of a concerted effort on his part to engage in stalking.
That is not to say that the effect on the mother was any different whether he had intended it or not. I am not satisfied in the circumstances that this constituted conduct on his part that could properly be described as stalking or which would properly so construed be regarded by any objective observer as being harassment. Comments that the father made in Court, while again interpreted by the mother in a threatening way, in my opinion do not objectively satisfy any test that harassment was intended by the father.
Each of the parties puts forward factors relating to the time that the father has spent with the child which are inherently difficult. To begin with, the conduct that the father asserts as representing how delighted the child is to spend time with him is counterbalanced by the descriptions by the mother of the illness and the upset that is suffered by the child in and around the incidents where she spends time with her father. They might both be correct.

The father might be lying. The mother may be lying. Either may be misconstruing events.
I find that it is more likely than not that there has been some manipulation by the father of some of the factors relating to the child’s time with him, in particular the constant re-emergence of the phrase “leaping into his arms” is one which I feel is more likely to have been generated by him rather than something that spontaneously arose. Its repetition on a number of occasions would give rise in my mind to a serious doubt that this was a genuine and spontaneous statement by anyone. However, the plain fact of the matter is - - -

RECORDED : NOT TRANSCRIBED

I am unable to form any conclusion about those matters. However, in the circumstances of this case, in my opinion there is no case made by the mother that I should in fact set aside the stay order pending the final hearing. In coming to that conclusion, not only have I taken account of the unsatisfactory nature on both sides about what is happening and for the fact that in large measure the assertions of either party are uncorroborated; in some cases unable to be corroborated because there is no-one else present; in the case of the father, able to be corroborated but uncorroborated because no-one was here to corroborate the matters that he referred to. I accept there are some difficulties with the serving of a subpoena and having it compiled with on Marymead. But it is not an impossibility.
I also take account of the proximity of the appeal hearing and the fact that at this stage to reverse the stay would have little practical effect. In the end, however, it seems to me that there has been a failure by both parents to take account of ways in which the issue with Marymead might have been overcome and - - -

RECORDED : NOT TRANSCRIBED

The first application made by the mother in her response is dismissed. It seems to me that if the appeal is successful and a rehearing is ordered or if there is a delay in the judgment of the Full Court, then both parents would have an obligation to do whatever is reasonably necessary to put enough information before the Court to enable an independent assessment of the process to occur, and to do this the following information in my opinion should be provided.
The parties may agree that someone such as Dr C or some other person might be appointed as an independent assessor. However, it is appropriate that if this is to occur, it should be made clear that the person who is conducting the assessment should have available to him or her my primary judgment, the judgment of the Appeal Court when it is relevant, all subsequent affidavits and applications made to this Court and any judgments that have been made by this Court since my primary judgment and all orders that have been made.
I would want to have Marymead indicate precisely what it means because otherwise the process of assessment would be simply a waste of time because until we have clearly determined what it is that will enable them to resume their supervision, there is not really much point in having an assessment done, and finally, it seems to me that both parents need, as does Marymead, to signify their willingness to participate.
If an application is made at an appropriate time with that relevant information, then it seems to me that there should be an order made of the sort that would require an independent assessment. Otherwise the orders I make are as I have indicated. The matter is removed from the pending cases list.

RECORDED : NOT TRANSCRIBED

In this matter the process in relation to costs is governed by the provisions of s 117 of the Act. Relevantly, in relation to that section of the Act I take account of the following factors. The father has been wholly unsuccessful in relation to his application, as has the mother. In the circumstances the bulk of the time of this Court has been occupied by dealing with the father’s application rather than that of the mother. In my opinion, his lack of success in that area means that he should bear part of the costs in these proceedings. In my opinion, he should pay one part of the wife’s costs as agreed or as assessed. In taking that into account, I take account of the primary rule that in these matters each party is to pay his or her own costs. I take account of the fact that these are proceedings about the child and as such may require a consideration as to whether or not that - a party would be precluded from making an application if an order for costs were awarded. I also take account of the fact that this is the third application that has been made since my primary orders were made and I think that is a matter to be taken into account under s 117(2A)(g). The order will be that the father will pay two-thirds of the costs of the mother as agreed or assessed.

RECORDED : NOT TRANSCRIBED

ORDERS DELIVERED

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Faulks

Associate:

Date: 31 August 2007

[2007] FamCA 1003

21 August 2007

Key Legal Topics

Areas of Law

Civil Procedure

Legal Concepts

Costs

Stay of Proceedings

Res Judicata