MORRIS & RICHARDS

[2014] FamCA 804

FAMILY COURT OF AUSTRALIA

MORRIS & RICHARDS [2014] FamCA 804

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of the child – Where mother sought suspension or revocation of interim orders which ordered that the children who had been living with her, live with the father and that the father be permitted to relocate with the children – Where ICL identified that this was a matter where a speedy trial should occur and the Court noted time would be made available in the forthcoming sittings in October, some 6 weeks away – Where mother sought skype communication and face to face time with the children and for the father to provide her with weekly photos and updates in relation to the children – Where ICL and father opposed skype and face to face time but did not oppose the providing of photos and updates – Where Court satisfied it was in the best interests of the children that the father provide by email to the ICL a report and photo of the children on a weekly basis – Where Court  not satisfied it was in the best interest of the children for there to be skype communication between the children and the mother – Where Court noted the period of time in considerations was 6 weeks – Where the Court noted there were live real issues in relation to the mother directly potentially involving the welfare and physical welfare of the children – Where the Court noted it could not presently make any conclusions as to the risk the mother posed, but noted the protective role of the Court and declined to make an order for face to face time between the mother and the children.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Morris

RESPONDENT: Mr Richards

INDEPENDENT CHILDREN’S LAWYER: Ms Meehan

FILE NUMBER: TVC 829 of 2013

DATE DELIVERED: 9 September 2014

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 9 September 2014

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER

M M Meehan

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER:

1. Each week, the father is to email the Independent Children's Lawyer a report advising in relation to the health, wellbeing and progress, of each of the children S born … 2012 and G born … 2012 together with at least one photograph of each child, which report and photographs will then be emailed by the Independent Children's Lawyer to the mother.

1. Both parties are to keep the Independent Children's Lawyer advised of their current email addresses.

1. This matter be ajdourned to the Registrars’ list for urgent trial directions (to prepare it for listing for trial in the fortnight commencing 27 October 2014 for no less than 1 day, and as many days as the list can accommodate given the respective demands of other cases).

IT IS FURTHER ORDERED THAT:

1. Otherwise the mother’s Application in a Case filed 1 August 2014 is dismissed.

NOTATION:

A.The Registrar is to redirect the file to Justice Tree after trial directions have been made to give consideration as to whether any issues of fact or law should be finally determined in the (likely only part) hearing of the matter in the sittings commencing 27 October 2014.

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

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 829 of 2013

Ms Morris

Applicant

And

Mr Richards

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application in a Case filed 1 August 2014 the mother sought the suspension, or perhaps revocation, of orders made by Judge Coker on 11 July 2014 in relation to the two children the subject of these proceedings, G and S, being twins born in 2012.  Under those orders Judge Coker had ordered that the children, who hitherto had been living with the mother, live with the father, who was permitted to relocate them to Brisbane.  The mother remains resident in E Town.  The regime of interim orders then made also prohibited the mother from having direct or indirect contact with the father by any means whatsoever, and only afforded the mother the opportunity to spend time with the children once every six months for no more than two hours on each occasion supervised at the E Town Contact Centre.  The mother was permitted to bring the children’s three elder siblings, H, J and K, to any such session, but no other person. 

2. It is difficult to know precisely what motivated his Honour’s orders of 11 July because it appears as though, although reasons were then given, they have not subsequently been transcribed.  However, some confidence can be had that his Honour was accepting and acting upon the then recently released Family Report dated 27 June 2014 which in substance made recommendations which formed, ultimately, the orders of 11 July.

3. The orders which the mother now seeks by her application are opposed by the father and, indeed, the Independent Children’s Lawyer.  However, in her written outline Ms Meehan, the Independent Children's Lawyer, identified that this was a matter where a speedy trial should be ordered.  I explored that with the parties during the course of the hearing before me, and identified that some time, at least a day, would be made available to the parties in the forthcoming sittings in Townsville in the fortnight commencing 27 October.  The estimate of time for the trial is between two and five days, and therefore it may be likely that the trial does not conclude in that time.  However, at the least it would commence, with no doubt the Family Report writer and the psychiatrist, Dr B, being cross-examined. 

4. It may be that some factual issues could, in fact, be determined on a final basis, although the complete hearing of the matter would not conclude.  In light of that, namely, that it is likely to be about only six weeks between now and when the trial of this matter commences before me, the orders which the mother sought before me were substantially altered.  In substance, she sought four orders pending the commencement of the trial during which, as I indicated to the parties during the course of the hearing of this application, if it transpires that the trial is unlikely to conclude in that fortnight, the issue of interim orders could be revisited with the benefit of cross-examination of at least two witnesses. 

5. The orders which she sought were, firstly, that she have Skype communication with the children on Monday, Wednesday and Friday of each week between 4 and 6 pm with the mother to initiate the call.  That was opposed by the father and the Independent Children's Lawyer.  The next order she sought was to have unsupervised time with the children for one day a week between 10 am and 4 pm in Brisbane with the mother having the opportunity to bring the other siblings of the children to that time.  That was also opposed by the father and the Independent Children's Lawyer.

6. The mother also sought that she be permitted to spend unsupervised time with the children every two to three weeks from 5 pm on Friday till 8 am on Monday in E Town.  That was, likewise, opposed by the father and the Independent Children's Lawyer.  Finally, she sought orders that the father provide her with photographs and updates in relation to the children on a weekly basis.  During the course of argument, ultimately both the father and the Independent Children's Lawyer agreed that such an order should be made, namely, that the father provide each week by way of email to the Independent Children's Lawyer a report as to the children’s health, wellbeing and progress and append at least one photograph of each of the children to that email.  I am satisfied that that order would be in the best interests of the children and propose to make it.  However, it remains for me to determine whether or not in addition to that order, there should be Skype and face-to-face time between the children and the mother and their siblings.

7. Those matters are necessarily determined by consideration of the children’s best interests. The considerations listed in s60CC of the Family Law Act and the cases which discuss it, inform the determination of the children’s best interests.  I will address those considerations in due course.  However, at the outset I should say that, obviously, the orders which are being contemplated are only intended to last something in the order of six weeks.

8. The first primary consideration is the benefit to the children of having a meaningful relationship with both of their parents.  Whilst on a general theoretical level one could accept that all children derive some benefit in having a meaningful relationship with their parents, here that is a matter which is starkly raised in relation to the mother by the Family Report writer who concluded in paragraph 88:

   In summary, if [G] and [S] continue to live primarily with the mother, the report writer has no confidence their basic wellbeing will be consistently met, and they will likely continue to experience unnecessary medical symptoms, assessments and treatments.  [The mother’s] constant involvement in complex situations and relationships and the mental health difficulties of [H] would certainly prevent a week-to-week focus on the children’s emotional and developmental needs.

9. Later at paragraph 91, which is unnecessary to fully recite, she opined as to adverse potential later consequences of the children remaining in the mother’s care, namely, relevantly:

   … will certainly reduce their wellbeing in every developmental domain, increase the risk of adult criminality and the likely result of a severely insecure attachment relationship with the mother.

10. Plainly therefore, there are real doubts as to the benefits to the children of having a meaningful relationship with the mother.  However, I accept that the mother puts forward material which would, if accepted, to some extent undermine the primary facts which appear to be the basis for the Family Report.  As such, on an interim hearing such as this, I am unable to determine whether the children would benefit from having a meaningful relationship with both of their parents, or at least, certainly the mother. 

11. The second primary consideration (which by subsection (2A) of section 60CC is to be given greater weight than the first primary consideration) is the need to protect the children from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence. In interim proceedings such as these the Court necessarily acts protectively, particularly where it is not possible to make final determinations of fact in relation to contentious matters. However, plainly from the Family Report and the report of Dr B, there is as a live issue in these proceedings the question of whether or not the mother has either abused or neglected whether these children, or other children, such that it would inform the need to protect the children from the risk arising from, amongst other things, the mother’s medical issues, given that the Family Report writer has opined that the mother may have a factitious disorder.

12. Although that was not supported by Dr B, he did conclude at paragraph 7 of his recommendations:

    In my view, it is most likely that the mother does have significant personality disturbance with dependent personality features and deep feelings of insecurity and overreliance on others which then lead to feelings of desperation when the relationships have broken down.  It may be very difficult for her to continue caring for her current children if she is under such stress and feeling so abandoned.  The reports were that [H] [who I interpolate is one of the other siblings] particularly was struggling, and had a lot of disruption moving between his parents.  [J] [who I interpolate is one of the other siblings] also had some significant issues, as does [K] [I interpolate again that he is the third of the other siblings].  I would be concerned about the mother’s ability to cope with the needs of the three children who are probably all travelling with difficulty through their lives.  The other danger is that the mother might form another dependent relationship that is likely to be unstable.

13. Plainly, this does raise matters relevant to the criterion at section 60CC(2)(b). Again, the mother points to material which, if accepted, may reduce the force of that opinion because it may erode the factual basis upon which it is probably based. However, that is not a matter that can be determined in proceedings on an interim basis. It must await trial.

14. Therefore, whilst I identify that this case squarely raises the need to protect the children from harm, and thus the need to act protectively, nonetheless I cannot make any firm findings in relation to the risk posed by the mother, other than it is real. 

15. There are then the additional considerations.  The children are just a little over two years of age, therefore, they have expressed no views.  As to the nature of the relationship with each of the child’s parents and other persons, it is to be expected that the children had a primary attachment with the mother at the time that they were removed from her care, and that they would have had strong sibling bonds.

16. It is a matter of conjecture as to what effect the two months of separation from the mother may have had upon her relationship with the children, however, it has to be accepted that it would not have improved it.  Likewise, it is a matter of conjecture at the moment as to what effect living with the father for the last two months has had on the relationship of the children with him.  However, it is to be expected that the children would still have a strong relationship with their mother, and it is likely by now, have a strong relationship with their father.  I also acknowledge that they are likely to continue to have strong relationships with their three elder siblings. 

17. Subparagraph (c) is not a matter which I can make any useful observations on in the context of these proceedings.  As to consideration (ca), it appears as though the father has in the past had, and perhaps presently has, a considerable child support debt.  However, at the moment I am unable to make any real conclusions or draw any inferences from that fact.  Consideration (d) is important in this case.  It is the likely effect of any changes in the child’s circumstances, including separation from either of his parents or any other child with whom she has been living.  However as I raised with all parties during the course of their submissions, we are only talking about a period of six weeks. 

18. These children have already had a dramatic change in their circumstances effected consequent upon the orders of Judge Coker, and it is to be expected that to change their circumstances again so that they would move into spending unsupervised time with the mother may, as I somewhat inelegantly said during the course of argument – which phrase was ultimately adopted by Ms Meehan – start muddling their heads, particularly if, having commenced upon Skype or face-to-face time with the children, that regime were then not to survive the October hearing.  Therefore, I place considerable weight upon consideration (d) in the context of this application.  Subparagraph (e) is also relevant; it is the practical difficulty and expense of the child spending time with and communicating with the parent.  Plainly, there are practical issues here with the mother living in E town in northern Queensland and the father in Brisbane.  The mother is proposing that these children should fly every two to three weeks from E Town to Brisbane and she fly down on a weekly basis.  There are real issues of difficulty and expense here.  However, again, I emphasise the period in question is only about six weeks. 

19. Subparagraph (f) is the capacity of the child’s parents and other people to provide for the needs of the child.  That is plainly a consideration that is enlivened here.  However, I do not need to address it further than I have addressed the other relevant considerations which overlap it.  Subparagraph (g) is not engaged; (h) is not engaged; (i) is engaged, but, again, there is nothing more that I need to say in relation to it beyond adverting to what I have previously said in relation to preceding criterion. 

20. Subparagraph (j) is relevant because there are allegations of family violence, however, they are denied by the father, and on an interim proceeding I cannot draw any inference from that.  Subparagraph (k) appears to be relevant here, because recently a final Family Violence Order was made with the father named as the respondent.  However, at the moment there is no inference that I can make relevant to that pertaining to the issues that need to be determined, being Skype and face-to-face time between the children and the mother. 

21. Subparagraph (l) is relevant, but in the context of a looming trial, or at least the looming commencement of a trial, it is not possible to make orders that would be least likely to lead to the institution of further proceedings.  Subparagraph (m) is relevant only to the extent that I am troubled about the potential, to use another poor phrase, yo-yoing of the children between E Town and Brisbane pursuant to the orders which the mother seeks and, further, the prospect of some adverse effect upon them if face-to-face time is permitted with the mother and the siblings for the next six weeks, but then ceases again, as may happen in the event that interim orders are revisited during the course of the trial.

22. I then turn against that traverse of the section 60CC factors to consider whether or not there should be, firstly, Skype time. The period of time that we are considering is six weeks. There is no evidence of Skype being utilised between the children and the mother in the past, nor is there anything to say in relation to children of such a tender age that they would obtain any benefit from it. It may well be a source of angst and anxiety between the parents. Given that we are talking about a period of six weeks I am not satisfied that it is in the children’s best interests for there to be Skype communication between them and the mother.

23. I then turn to the question of unsupervised time with the mother or, indeed, any time beyond that contemplated by Judge Coker’s orders between the children, the mother and their siblings.  There are live issues of concern in relation to the mother.  They may have been, to some extent, ameliorated by the somewhat gentler opinion of Dr B than Ms L, the Family Report Writer, but they are live real issues directly potentially involving the welfare and physical safety of the children.  We are talking about a period of six weeks.  I accept that the mother would no doubt wish to maintain the degree of recognition and relationship which the children presently have with her, unreduced by the time of trial.  However I do note that, having not seen the father for some considerable time, when they were reintroduced to the father in the course of the Family Report interviews, they recognised him and were able to, it appears, rapidly re-establish some form of bond with him.  There is no reason to think that the children, having so behaved in relation to the father, would not so behave again in relation to the mother.

24. Therefore, my task is to weigh the risk which the mother is said to pose, (accepting that I cannot make any conclusion in relation to that but need to act protectively) against the desirability of the children being able to maintain such relationship as they may have with the mother, assuming that, ultimately, orders for the perpetuation of that relationship – as distinct from mere recognition – are made.  I determine that consideration is in favour of protecting the children from the risk of harm, and decline to make any order for face-to-face time under either of the relevant orders that the mother proposes. 

1. Therefore, the only order that I will make is that which I have previously indicated will be made by consent dealing with a weekly email and photographs.  There will also be an order obliging the parties to maintain a current email address with the Independent Children's Lawyer.

   RECORDED  :  NOT TRANSCRIBED

2. I will adjourn this matter to the Registrar for urgent trial directions, and I will put a notation on the orders that the Registrar should redirect the file to me once trial directions have been made so as I can consider whether or not there should be a final determination of any issues in the October hearings.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 9 September 2014.

Associate: 

Date:  9 September 2014