Millard and Millard (No 2)

[2018] FamCA 902

FAMILY COURT OF AUSTRALIA

MILLARD & MILLARD (NO 2) [2018] FamCA 902

FAMILY LAW – CHILDREN – Interim proceedings – Where interim orders are already in place – Where the final hearing is part-heard – Where the children currently spend no time with the father – Where the children currently live with the mother – Application by father to spend time with the children until final orders are made – Where no finding of fact can be made on the evidence as it stands – Father’s application is dismissed – Interim Orders for the father to send letters and gifts on Christmas and birthdays – Where the Father can inform the children in writing of his partner’s pregnancy – Where all correspondence between the Father and children must first be read and approved by the ICL - Where the ICL must inform the children of current proceedings.

APPLICANT: Ms Millard

RESPONDENT: Mr Millard

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: SYC 5458 of 2015

DATE DELIVERED: 8 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 2 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gillies SC

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT: Mr Batey with Ms Lioumis

SOLICITOR FOR THE RESPONDENT: Hamish Cumming Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kenny

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

Orders

IT IS ORDERED

1. That the father’s application for interim orders to spend time with the children, B (“B”) aged 13 ½; C aged 11 and D (“D”) aged six years made on 3 November 2018 be dismissed.

2. That the father be permitted to forward to the Independent Children’s Lawyer (“ICL”) a letter telling the children about the expected baby.

3. That the father be permitted to send to the ICL, for each child a Christmas card and Christmas presents and, on each child’s birthday, a birthday card and birthday presents.

4. That in the event that the ICL declines to pass on to the children any of the items referred to in Orders (2) and (3) herein, the ICL will inform the parents of that fact and her reasons for so doing.

5. That the ICL, as soon as practicable, by arrangement with the Regional Co-Ordinator, Children’s Dispute Services, Family Court of Australia, meet with the children and a Family Consultant, on at least one occasion, for the purpose of explaining the present state of the proceedings and orders to the children and passing on to them any other information that the ICL deems relevant and appropriate.

6. That the meeting referred to in Order (5) be confidential and non-reportable.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Millard & Millard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5458 of 2015

Ms Millard

Applicant

And

Mr Millard

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for hearing for five days commencing on 29 October 2018. It concerns competing applications in relation to three children, B (“B”) aged 13 ½; C aged 11 and D (“D”) aged six years. The parents, Ms Millard (“the mother”) and Mr Millard (“the father”), are in dispute about the proper parenting arrangements for them.

2. Except for one occasion, the children have not had face to face contact with their father since 26 April 2018 when Benjamin J made an order which provided that the mother should have sole parental responsibility for the children and that they should live with her and have no contact with the father. Relevantly to the matters now to be determined on an interim basis, both parents were restrained from discussing any aspect of these proceedings with the children.

3. Shortly before the final hearing commenced, the matter was relisted on the application of the Independent Children’s Lawyer (“ICL”) and the Court was told that the matter could not be contained within five days. All parties were anxious that the trial should commence. On the first day of the trial, the parties were offered a further day on the following Monday but they all agreed that a further five days would be needed. The first available five days has been allocated to complete the trial, commencing on 1 April 2019.

4. By the fifth day of the trial, the mother and all of her witnesses had been cross-examined. The father’s current partner had been cross-examined. The father had not. In the father’s case, the father, his therapist, two lay witnesses and a police officer who is to be called on subpoena remain to be cross-examined. A psychologist who has assessed the father and has sworn an affidavit in the ICL’s case has yet to be cross-examined.

5. Most significantly, the Single Expert, Dr K who is a child and family psychiatrist, has not been cross-examined.

6. Counsel for the father foreshadowed an application to call Dr K on the fifth day of the hearing so that he could be cross-examined in aid of the foreshadowed interim application. That application was refused and I indicated that reasons for that refusal would be included in the substantive judgment.

7. At the end of the fifth day, an application was made on behalf of the father for interim orders which would re-instate some time with the children. He also sought orders which would permit him to send Christmas and birthday cards and presents to the children and that he be permitted to write to the children and tell them that his partner is expecting their child.

8. I raised with the parties my concern that the children should be told of the progress of the proceedings.

9. The father proposed that the Single Expert, Dr K, should have a further conference with the children for that purpose. That proposal was opposed although there was general agreement that the children need to be informed.

   THE INTERIM APPLICATION

10. The father sought time with the children from after school on Thursday until school on Monday each alternate weekend; on Christmas Day 2018 from 3pm until 10am on 27 December 2018 and for half of the school holidays on a “week about” basis.

11. He proposed that the weekend time be supervised by Ms LL, a babysitter employed by the mother from time to time and that the Christmas and holiday time be supervised by his partner, Ms Q.

12. In the event that his application were unsuccessful, the father sought:

    (1)That the father be permitted to write a letter to the three children limited to:

    (a)Passing on his best wishes and other neutral forms of affection and timely Christmas Cards and birthday cards in accordance with Order 2(c).

    (b)Informing the children of the pregnancy of his partner…and that they expect the baby to be born in the middle of 2019.

    (2)That Dr K be retained to:

    (a)Advise the children of the stage of the proceedings. The purpose of the proceedings and the current delay to a final hearing.

    (b)Explain to the children the reason and purpose of the existing Orders.

    (c)Read to the children the letter from the Father provided in Order 1a.

    (d)Provide a supplementary report on any matter related to the children’s best interests pending further hearing.

13. Both the mother and the ICL opposed any order that provided for face to face contact between the children and the father and the receipt by the children of a letter telling them about the pregnancy.

14. Both the mother and the ICL agreed that Christmas and birthday cards and presents could be sent to the children through the ICL.

15. It is necessary to understand something of the complex issues which are the subject of the trial.

16. Each parent set out the case that she or he prosecuted.

17. The Outline of Case document filed in the mother’s case sets out her contentions in the following manner:

    The mother’s case is that the children are at an unacceptable risk of harm in the father’s care. That risk is said to include, at least, a risk of psychological and physical harm.

    …

    During the course of the parties’ relationship the mother recounts disturbing and abusive behavior that the family were subjected to by the father. There is also evidence from others, including the father’s extended family, that corroborates his behavior towards the mother and children. His mother gives evidence that he has assaulted her and on one occasion tried to strangle her.

    Post separation there were periods where the children lived with the father. From about 2017 the father failed to support a relationship between the mother and the children. It is the mother’s case that the father is unable to tolerate a contrary view to his own or anybody not being in complete alliance with him. If the father’s orders are granted the children will not only be at risk of harm but will also be cordoned off from supports and relationships outside of the father. Whilst the mother similarly asks for orders that would see the children having no relationship with their father this is in the context of providing them with an environment free from risk and where they will be able to individuate from her. She will also be able to support extended family relationships.

    The father seeks to say to the court that the mother is a risk to the children. Curiously he has sought orders that the children spend significant time with her. He has maintained this position even during periods that the children (or one of them) have been in his care and have not spent any meaningful times with their mother.

    What is clear from the evidence of both parties over the last year is that during periods where the father has had time with the children or an ability to communicate with them it has been disturbing and disruptive for the children. During the period that the children had supervised time with the father the mother’s evidence is to the effect that it was destabilizing for them. Their behaviour has settled in recent months again in the context of them having no time with their father.

    It is the mother’s position that it is not in the best interests of the children to spend any time with the father.

    (footnotes omitted)

18. The Father’s case was also set out in his Outline of Case document in the following terms:

    The Father’s case is that the three children have and continue to have a strong bond with him. That bond has been undermined by a combination of the mother and paternal Grandmothers’ denigration of him, resulting in current Interim Orders of April 2018 that prevent the children from maintaining their relationship with the father. 

    The father denies there is any basis in the mother’s belief that he is abusive, physically aggressive or emotionally controlling of the mother and the children. He denies emphatically the many and assorted accusations made by the mother and paternal grandmother.  

    The father seeks Orders that provide a basis for a new start, in which each parent can accept they have different parenting styles, but that for the sake of the children they must acknowledge that whilst the children are in the other parent’s care, they must be supportive of the procedures and practices that exist in the other parent’s home. 

    As a result of [Dr K’s] report, the father has significant concerns that, should he be excluded from the children’s lives, as sought by the mother,  the children will continue to firmly believe that the current, and any future alienation from him is a result of the mother’s actions. Further, if their wishes have and continue to be ignored, and they are deprived of any meaningful relationship with the father and guaranteed of a fractured relationship with the mother, then the children are at significant risk of psychological and emotional harm in the immediate future, and ongoing.

    There is no evidence the children are at risk of physical harm whilst living with the father. The evidence of emotional or psychological risk primarily arises from their strained relationship with the mother. Whether that strained relationship has resulted from the mothers inability to adjust to the increasing independence of the children or, as the mother alleges, subtle undermining by the father, are important issues, but not ones that are determinative of the children’s future relationships with each parent. 

    The father contends that with appropriate therapy and counselling and an acceptance by both parents, and the need to modify and improve their interactions with each other for the sake of the children’s ongoing best interests, the Court would be satisfied that the Orders sought by the father form the preferable foundation for the children’s relationship with both parents. 

    The father seeks an order restricting the paternal grandmothers interaction with the children without appropriate supervision. The father’s case is that the paternal grandmother’s own record as a responsible parent is so flawed that her capacity to encourage a relationship between the children and the father is non-existent. Due to the mother being accepting and aligning with the paternal grandmother in her denigration of the father, and the children’s lack of meaningful relationship with the paternal grandmother, the father asserts there would be no benefit to the children by encouraging a relationship between the children and the paternal grandmother.

19. The parents each raise very significant factual issues including, but not limited to, allegations of serious family violence, and allegations that each parent has subjected the children to psychological harm.

20. On the case of either party, it is possible that an order could be made that the children live with one parent and do not spend time with the other parent. Each alleges that the other has, at least, undermined the children’s relationship with the other or, at its highest, actively set out to destroy that relationship.

21. In order to determine what final orders should be made, it is necessary to make findings in relation to highly contested facts.

22. Both the ICL and the mother have told the Court that the cross-examination of the Single Expert will be very lengthy and both have indicated that significant areas of his evidence will be challenged.

23. For that reason, it is appropriate that the cross-examination of the Single Expert will take place when all of the other evidence, both of witnesses and of documents, is before the Court and can be put to him.

24. No findings of fact can be made on the evidence as it stands. The father has not been cross-examined. His case has only just commenced. No doubt there are still documents to be tendered.

25. It would not be in the interests of the children to change the present arrangements for the children when there exists a risk that the changes could be reversed after all the evidence has been considered.

26. There is a risk that an injustice could be done to the father if an interim determination is made at a time when neither he, nor all but one of his witnesses, have been cross-examined.

27. In order to make orders as sought by the father, it would be necessary to find that such orders were in the best interests of the children. Due to the nature of the issues presently under consideration and the incomplete state of the evidence I am not yet in a position to draw that conclusion. 

28. It cannot be accepted that supervision will be a sufficient safeguard for the children. It is uncontested that one of the children ran away from the mother at a time when they were seeing their father with a professional supervisor. One of the proposed supervisors, Ms LL, has not been cross-examined. There is no evidence about her qualifications and experience or her willingness to supervise on a long term basis or at all. She describes herself as a ‘casual babysitter”. The father’s partner has given evidence but there is no evidence that she is able to modify or influence the father’s behaviour. This situation may change when the father has given his evidence.

29. The father’s interim application to spend weekend and holiday time with the children will be dismissed.

HOW SHOULD THE CHILDREN BE INFORMED?

1. Counsel for the father submitted that Dr K was the appropriate person to inform the children of the current state of the proceedings. He submitted that the children have met Dr K and that it is inappropriate for them to meet a stranger. Further, it was submitted that Dr K will have access to all of the relevant information.

2. I stress that Dr K had not been asked whether, in his opinion, it was advisable or appropriate that he speak to the children for this purpose, or whether he was willing to do so.

3. Senior Counsel for the mother submitted that task is outside the role of the Single Expert. There is some force in that submission. The role of the Single Expert is to give objective and unbiased opinion that is independent and impartial on matters that are within his knowledge and capability. Arguably, the task which is being suggested by counsel for the father verges into the area of therapy or at the least, blurs the boundaries between the roles of Single Expert and counsellor.

4. It is preferable that no opportunity arise which might give rise to any challenge to the objectivity of the Single Expert.

5. The better course is that the ICL should speak to the children with the assistance of a Family Consultant of the Family Court of Australia. In the course of that conversation, the children can be assured that I am very well aware of their consistently expressed wish to live with their father and that I have read their emails, texts and letters to their father since 26 April 2018. They might also be told that their wishes, though relevant, are not determinative of the outcome of the proceedings.

6. The meeting should occur as soon as possible and, at the discretion of the ICL, more than one meeting may be appropriate.

INFORMING THE CHILDREN ABOUT THE PREGNANCY

1. Counsel for the ICL submitted that the children need not be told at this early stage.

2. Counsel for the mother submitted that the information should not be given to the children by the mother.

3. Unfortunately, information about the pregnancy is already known to a school friend of the oldest child, and I accept the submission of counsel for the father that they should not find out the news from anyone other than him. Accordingly the father will be permitted to write a letter to the children, to be forwarded to the ICL who will read the letter before passing it on to the children. In the event that the ICL declines to pass the letter to the children, the matter can be re-listed before me if either parent is dissatisfied with the decision of the ICL.

4. The ICL may choose to give the father’s letter to the children when she explains the orders in conjunction with the Family Consultant but this a decision for the ICL.

5. The father will be permitted to send each child a Christmas and birthday card and Christmas and birthday presents. They will be sent to the ICL who will read the cards and arrange to pass on the cards and presents.

ADDENDUM REPORT BY DR K

1. In the course of the five days of hearing so far completed, a number of applications have been made for additional material to be forwarded to Dr K and consequently a large volume of documents has been forwarded, including the trial affidavits which were not available when Dr K’s report was prepared.

2. It would be of great assistance to the parties and to the Court if Dr K were to prepare an addendum report setting out any matters which arise from that additional material.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 8 November 2018.

Associate: 

Date:  08/11/2018