Murdoch and Jillet

[2017] FamCA 1067

FAMILY COURT OF AUSTRALIA

MURDOCH & JILLET [2017] FamCA 1067

FAMILY LAW – CHILDREN – Further interim application to vary interim consent orders – Where no circumstances found justifying variation as sought – Where application dismissed – Where application for costs by ICL against the applicant reserved to imminent final trial.

Family Law Act 1975 (Cth) s 117(2A)

Banks & Banks [2015] FamCAFC 36
Deiter& Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
George & George [2013] FamCAFC 182

Jillet & Murdoch [2016] FamCA 1184

Marvel v Marvel[2010] FamCAFC 101

APPLICANT: Ms Murdoch

RESPONDENT: Mr Jillet

INDEPENDENT CHILDREN’S LAWYER: Mr Samuel

FILE NUMBER: PAC 5266 of 2015

DATE DELIVERED: 20 December 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 11 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kelly

SOLICITOR FOR THE APPLICANT: Derham Houston Lawyers

RESPONDENT – SELF-REPRESENTED LITIGANT: Mr Jillet

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Samuel of Brian Samuel & Associates

Orders

1. That the mother’s Application in a Case filed 24 October 2017 be dismissed.

2. That the Independent Children’s Lawyer’s application for costs of and incidental to the said Application in a Case as against the mother be reserved for determination at final trial.

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 Murdoch & Jillet 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 PARRAMATTA

FILE NUMBER: PAC 5266  of 2015

Ms Murdoch

Applicant

And

Mr Jillet

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The application for determination relates to the discrete issue as to the circumstances pertaining to the father’s supervised time with the children B, now aged six and C, now aged five.

2. Parenting proceedings in relation to the two children were commenced by the father by Application filed 20 January 2016. In that Application the father, in summary, sought final parenting orders as follows:

   a)that the mother and father have equal shared parental responsibility for the children;

   b)that the children live with the mother;

   c)that the children spend time with the father primarily each alternate weekend during school term, two afternoons per week after school, special days and for periods of two weeks during school holiday periods and at such other times as the parties may agree.

3. The mother in her Response filed 8 April 2016 sought final parenting orders that provided:

   a)that the mother have sole parental responsibility for the children as to the issues of the children’s education, religious and cultural upbringing and the children’s health and that, otherwise, the parties have shared parental responsibility as to the children’s names and any change in the children’s circumstances that would make it more difficult for the children to spend time with either parent;

   b)that the children live with the mother;

   c)that the children spend time with the father as determined by the Court.

Context

1. Proceedings were initially commenced in the Federal Circuit Court of Australia and on 12 April 2016 were transferred to this Court. On the same day the parents were ordered to make arrangements for the father to have supervised contact with the children at the D Contact Service, Suburb E in Sydney.

2. Subsequently on 9 September 2016 interim parenting orders were made following a defended hearing before Hannam J.  Orders were made as follows:

   (1)Pending further order, the children [B] born … 2011 and [C] born … 2012 (“the children”) shall live with the mother.

   (2)Pending further order, the father shall spend time with the children supervised by [D] Contact Centre (“the Contact Centre”) for a period of at least two hours per fortnight to commence as soon as the Contact Centre is able to offer such supervised time.  In the event that the Contact Centre is able to offer weekly time of at least two hours per occasion, the father shall spend such time with the children as soon as that time becomes available.

   (3)The mother shall take all steps required of her to facilitate the children spending time with the father pursuant to order (2), including delivering the children to the Contact Centre as required.

   (4)The cost of supervised contact by the Contact Centre shall be paid equally by the parents and as required under the Contact Centre rules.

   (5)Both parties are restrained from:

   (a)Denigrating the other or members of the other party’s family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so.

   (b)Discussing these proceedings or any issues arising out of these proceedings with the children or permitting any third party to do so.

   (6)The mother is to notify the father forthwith of any significant illness, physical injury or medical condition suffered by either child or as soon as practicable in the case of an emergency.

3. Her Honour’s reasons for judgment (Jillet & Murdoch [2016] FamCA 1184) set out the short background to the matter as follows:

   7.The parents separated in October 2014 in Uganda and the two boys moved with their mother to Australia. The father also returned to Australia and both households were in Melbourne.

   8.In December 2014, the father spent time with the children unsupervised on a number of occasions. On one of these occasions there was an incident which the father describes as “a small but very unfortunate fall” from which [B] received a swollen and painful knee and ankle. It is the mother’s contention that the child was unable to bear weight on his foot following this incident and that she sought medical advice and was informed by the doctor that the injury did not match the father’s description of the accident. Following this incident, the mother insisted that she supervise the father’s time with the children on a number of occasions. The father did not agree that supervision was necessary, but submitted to it on the basis that the children would otherwise have missed out on spending time with him due to the mother’s requirements.

   9.From December 2014 until September 2015, the father spent time with the children for approximately five hours per week in total on Wednesday afternoon and Sunday morning. The father’s time with the children occurred in a public place such as a park, library or cafe as these were requirements that the mother put in place, though the father does not concede that they were necessary.

   10.There was a further incident involving [B] when he was in his father’s care in March 2015. The father says that the child bumped his head on a piece of playground equipment and received a lump and bruising. Following this incident, the mother only allowed the children to spend time with their father in the presence of either herself or another adult as supervisor.

   11.In May 2015 the mother says that after the children spent time with the father she noticed fingerprints on [C’s] bottom, which she contends resulted from a non-accidental incident.  The father denies that he has ever deliberately harmed the children or that he is neglectful.

   12.From June to October 2015 the father voluntarily undertook a parenting course.

   13.In September 2015 the mother travelled to Sydney for an employment opportunity and then advised the father that she would be moving with the children to Sydney.

   14.In October 2015, the mother moved permanently to Sydney with the children.  The father left his employment and moved to Sydney later that month.

   15.On 31 October 2015, the mother alleges that following the father’s time with the children she observed bruising on the back of [C’s] legs and buttocks.  She claims that the child subsequently made a disclosure to the effect that the father had hurt his penis and bottom. The mother took the child to a hospital and a notification was made to the Department of Family and Community Services (“Community Services”). The father has not spent any time with [C] since this date.

   16.The mother and children attended Community Services on 5 November 2015 and the boys were interviewed. Neither made any disclosure of concerning behaviour about their father. The father was also interviewed with respect to the notifications. Further investigations into the allegations were carried out including an assessment by a doctor from the Child Protection Unit. The doctor apparently expressed the view that the bruises were not consistent with the father’s suggestion that they were sustained while he was playing on a seesaw but did not find that the allegations of non-accidental injury could be sustained.

   17.The father spent time with [B] for the last time for one hour on 13 November 2015.  Since that time the mother has not agreed to the father spending time with the children unless such time is supervised and they have not been able to reach agreement about a supervisor.

4. On 6 March 2017 the proceedings were before the Court for further judicial case management. In summary, on that date the Court noted:

   a)that on 9 September 2016 orders were made for the children to have supervised time with the father;

   b)that the Court was this day informed that the mother had unilaterally moved the children to the G Town area notwithstanding the father’s opposition with the father now seeking to avail himself of additional weekly time in the G Town area and noting the parties’ consent to that further time being exercised in the G Town area if it is able to be arranged.

5. Accordingly, on 6 March 2017 the Court ordered that in the event that the father is able to arrange two hours additional time with the children each fortnight supervised by either a contact centre or private supervision agency outside school hours the parties are to do all things required of them to facilitate that service being provided.

6. Subsequently on 22 May 2017 further interim parenting orders were made by consent that relevantly, in summary, provided:

   a)that all previous parenting orders be discharged upon the supervisor referred to in the orders executing a written undertaking and at that time these orders come into effect;

   b)that the children live with the mother;

   c)that the children spend time with the father as follows:

   i)each alternate Saturday from 9.00 am until 3.00 pm to be spent by the children in [G Town] and supervised by [Mr F] or such other person or persons as agreed to by the parties in writing;

   ii)each other Saturday in [G Town] supervised by [H Contact Service] or such other agency or persons agreed to by the parties in writing from 12.00 noon until 2.00 pm noting that such time may extend up to a period of six hours subject to the availability and funding of the agreed supervisor …;

   d)that the order for the father’s time to be supervised by [Mr F] be subject to [Mr F] or such other supervisor as agreed to by the parties entering into and executing undertakings as attached and the mother meeting with [Mr F] at a time and place convenient to them prior to the commencement of the father’s time with the children under such supervision.

7. It is to be noted that, otherwise, the father was to be permitted to attend all sporting events and school events for the children, there being no requirement for supervision.

8. Final hearing dates have been allocated commencing 5 February 2018 for three days.

The mother’s present application and evidence

1. In her Application in a Case the mother seeks orders that, in summary, provide as follows:

   a)that the father’s time with the children as provided for in orders made 22 May 2017 be discharged;

   b)that the undertaking filed by Mr F on 26 May 2017 be discharged;

   c)that the children spend time with the father:

   i)each alternate Saturday in G Town for a period of four hours supervised by H Contact Service or such other agency or persons agreed to by the parties in writing subject to the availability of the supervisor and in the event of one four hour period being unavailable that the children’s time with the father be each Saturday for two hours from 12.00 noon until 2.00 pm;

   ii)otherwise, as agreed between the parties in writing.

2. The mother relied upon her affidavit filed 24 October 2017.

3. The mother asserts that on 10 September 2017 she delivered the children to the home of Mr F, the supervisor. She attended at that home at about 3.00 pm to collect the children at the conclusion of their time with the father. As she approached the home she saw Mr F standing at the front of his property near the footpath. The mother observed that the children were not with him. She inquired of Mr F as to the whereabouts of the children and at that time the father walked out of the home informing the mother that one child was in the bathroom the other child was hiding.

4. The mother makes no other adverse observations as to this incident on 10 September 2017 and it must be inferred that she collected the children from Mr F at the conclusion of their time with the father. She makes no assertion that the children were at risk other than expressing her concern that Mr F did not know where the children were when she arrived. This notwithstanding that it is plainly evident that the children were at his home.

5. The mother further asserts that on 24 September 2017 she delivered the children to Mr F’ home for their time with the father. When she arrived at 3.00 pm Mr F was outside the front of his house to meet her and the mother asserts that the children and the father were nowhere to be seen. On enquiring of Mr F she asserts that he said “I think that the children are putting their shoes on”.

6. The mother expresses concern that Mr F, to her observation, was not in the physical presence of the children and did not seem to know where they were, notwithstanding it appears common ground that they were at his home. The mother expresses her concern that Mr F is not taking his supervisory role seriously.

7. In subsequent correspondence between the parties the mother sought the father’s agreement as to a change in supervisor but such change was opposed by the father.

8. Notwithstanding the mother’s expressed concerns it was not until 24 October 2017 that the present application was made by her.

The father’s response and evidence

1. The father’s Response filed 29 November 2017 seeks, in effect, an order that the mother’s application be dismissed.

2. The father relies upon his affidavit filed 27 November 2017.

3. The father disputes the mother’s version of what occurred on 10 September 2017 and 24 September 2017.

4. He says that on 10 September 2017 he was present with the children and Mr F at Mr F’s home. The children heard the mother arriving and went to the front door and were followed by the father and Mr F. On the way to the front door the children went to hide in one of the bedrooms which is located a few metres away from the front door. The father and Mr F were unaware that the children had hidden and thought that they had gone out to meet their mother.

5. The father says that he was never alone with the children. The father’s version as to what transpired was communicated to the mother’s solicitor and to the Independent Children’s Lawyer (“ICL”) via email on 20 October 2017.

6. As to the incident on 24 September 2017 the father says that upon the mother arriving Mr F was standing in the door frame of the front door of his house where he could see the children and the father. The children were being assisted by the father put their shoes on and were very close to the front door. The mother would not have been able to see the father and the children from where she was standing and could only see Mr F.

7. The father says that the mother on 24 September 2017 did not communicate to Mr F or the father any concern that she may have had.

The Single Expert Report: Exh “B”

1. A chapter 15 single expert report has been prepared for the purposes of the forthcoming final hearing. The report was prepared by Dr J, Child, Adult and Family Psychiatrist. The report is extensive and, of course, will be the subject of examination in a fulsome way at final trial.

2. The single expert, in summary, recommends:

   a)that the children continue to reside with the mother who he describes as a capable caring parent and should not present as an unacceptable risk to the children. The single expert is of the belief that the mother ultimately does see the value of the children having a relationship with their father as long as she is able to deal with her anxieties and fear about harm;

   b)that the children have regular contact with the father in respect to which the single expert does not see the need for supervision, however, it is recommended that the children’s contact with the father initially starts as unsupervised day contact with overnight contact commencing after about six months and a regime of the children spending alternate weekends and one night in the intervening week with the father commencing after 12 months;

   c)it is relevantly further recommended by the single expert that both parents have separate individual counselling with an experienced therapist with the single expert report being made available to such therapist;

   d)that the mother does not need to have further intense psychological assistance but the single expert suspects that the mother needs a combination of cognitive behavioural therapy, dialectal behaviour therapy and acceptance and commitment therapy together with a form of interpersonal psychodynamic psychotherapy in order to deal with the in-depth issues that are impacting on her with such therapy likely to take at least two years to have a successful outcome so that she can be more balanced when assessing risk and danger with the children;

   e)that should the mother be unable to overcome her anxiety and continue to seek evidence of sexual abuse or physical abuse this would raise major concerns for the single expert and would be indicative of her being more disabled psychologically than would be currently apparent. Under such circumstances the single expert is of the view that it would be necessary to potentially change the residence of the children to the father with him to take over their primary care.

Interim Hearings

1. In Marvel v Marvel[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:

   120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   121. In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   122.Later, at paragraph [100] their Honours amplified their comments and said:

   “The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

1. In Deiter& Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

2. In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter (supra) in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.

3. In Eaby & Speelman [2015] FamCAFC 104 the Full Court on the same issue relevantly observed:

   18.…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

4. In Banks & Banks [2015] FamCAFC 36 the Full Court said:

   47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FamCAFC 42.

   50. When it is obvious that the findings made as to some of the s.60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CCfactor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   51. …

   52. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

5. In this matter it is necessary for the mother to provide evidence as to significant circumstances that may trigger a reconsideration of the existing interim parenting orders.

6. Currently before the Court there is the sworn evidence of one parent as against the sworn evidence of the other. It is regrettable that forensically no evidence was adduced from the supervisor Mr F as to his recollections and observations of the two occasions that are impugned.

7. Notwithstanding, the Court is unable to be satisfied on the balance of probabilities that there are significant  circumstances that existed on the two occasions the subject of the mother’s complaint such as would warrant a reconsideration of interim parenting arrangements made by consent.

8. It is noted in this regard that the mother makes no complaint as to any subsequent occasion or occurrence up to the date of interim hearing on 11 December 2017.

9. Submissions received from the ICL noted that between interim hearing and the final hearing in February 2018 there would be no more than four visits supervised by Mr F with the children and the father. The ICL draws attention to the single expert’s comments at lines [1672] – [1649] of his report which are as follows:

   I formed the view that neither parent was an unacceptable risk to the children except my concern is if the mother continues to anxiously illicit and interpret the children as being at risk and spuriously accuse the father that this court in fact harm or being abusive response against the children especially if she were to repeatedly expose the children to investigations by a foreign the figures, police and community services……

10. The ICL does not support the mother’s application and seeks to have it dismissed. It is submitted by the ICL that the father has provided a reasonable explanation for what occurred, no other allegations have been made, the children appear by all accounts to be enjoying their time with the father, Mr F, the supervisor, is a school teacher of primary school children and a Family and Community Services (“FACS”) approved respite carer. The mother has met Mr F and spoken with him and consented to his appointment.

11. Otherwise, the ICL makes reference to the final recommendations in the single expert’s report although conceding that at this stage the report remains untested at hearing.

12. In all of the circumstances, the Court is not satisfied that there are circumstances proven that would justify a reconsideration of previous interim parenting orders made by consent.

13. Accordingly, the mother’s application will be dismissed.

14. In the event of the mother’s application being dismissed the ICL, who had been put to the expense of appearing and preparing submissions, sought an order that the mother pay his costs of and incidental to the application.

15. In the absence of detailed submissions as to costs and in the absence of any evidence as to some of the relevant factors in section 117(2A) of the Family Law Act 1975 (Cth) it is appropriate that the costs application of the ICL as against the mother be reserved for determination at final trial. An order will be made accordingly.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 20 February 2017.

Associate:

Date:  20 December 2017