Nineth and Nineth

[2010] FamCA 200

FAMILY COURT OF AUSTRALIA

NINETH & NINETH [2010] FamCA 200

FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time

Family Law Act 1975 (Cth) s 60CC(3)(h), Division 12A, Part VII

C v C (1996) FLC 92-651
Goode v Goode (2006) FLC 93-286

APPLICANT: Ms G Nineth

RESPONDENT: Ms F Nineth

INTERVENOR: Ms Moldow

INDEPENDENT CHILDREN’S LAWYER: Ms Steiner

FILE NUMBER: LEC 421 of 2008

DATE DELIVERED: 24 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 24 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kirkman-Scroope

SOLICITOR FOR THE APPLICANT: G J Donaghy & Co

THE RESPONDENT: Appearing on her own behalf

THE INTERVENOR: Appearing on her own behalf

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Burridge Harris & Flynn Solicitors

Orders

IT IS ORDERED THAT

1. The matter be adjourned for further hearing at 11.00am on 17 June 2010 in the Brisbane Registry of the Family Court of Australia.

2. Each of the parties do all such things, sign all such documents, pay all such reasonable fees, and attend all appointments as are necessary so as to facilitate a report from a psychiatrist nominated by the Independent Children's Lawyer.

3. Pursuant to Section 62G of the Family Law Act, a Family Report be prepared for the Court by Ms D, Family Consultant, Child Dispute Services, and that such report to be available, if possible, by the further hearing listed on 17 June 2010.

   (a)For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents/documents related to this matter.

   (b)The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

   (c)The parties shall do all such things, sign all such documents, pay all such reasonable fees and attend all such appointments and ensure the child J born … August 2005 (“the child”) attend all such appointments as are reasonably necessary for the preparation of the Family Report.

   AND IT IS RESPECTFULLY REQUESTED THAT

   (d)Insofar as that Family Report should, among other things, take account of “the child’s right to enjoy his or her aboriginal culture, including the right to enjoy that culture with other people who share that culture” it is requested that in the preparation of that Family Report, Ms D have access to, and receive information from, MA (Aunty M), Mr T, Mr and Mrs O, Mr P, and Ms GS, all of whom reside in the E area and share the same aboriginal heritage as the parties to these proceedings.

   (e)Ms D receives information from Mr R for the purposes of such report.

   (f)The Manager, Family Dispute Services Brisbane give favourable consideration to the s 62G Family Report process to be prepared by Ms D include as part of the assessment process:

   (i)home visits to the residences of the parties involved in these proceedings;

   (ii)if at all possible, face-to-face interviews with the persons previously named above in the E region.

IT IS FURTHER ORDERED THAT

1. The Independent Children's Lawyer have leave to issue such subpoenae as considered appropriate.

2. Unless otherwise ordered, leave is granted to all parties to inspect and the INDEPENDENT CHILDREN'S LAWYER alone TO COPY documents produced pursuant to subpoenae, save in respect of any document of which an objection is taken by the recipients of any subpoena to either the production of documents or the inspection of them, or claim for privilege attaches and/or in respect of which confidentiality is claimed, in which case an application is to be brought before Justice Murphy to inspect such documents.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. J born … August 2005 (“the child”) live with the Applicant Aunt G Nineth.

2. The child shall spend time with each of his mother and maternal grandmother at all such times as might be agreed between the parties in writing and in any event each Saturday for a period of four (4) hours to be agreed between the parties, but commencing no earlier than 9.00am and concluding no later than 5.00pm each Saturday.

3. All of the time referred to in the previous order shall be supervised by either Ms GS, Ms AS and/or Mr P.

IT IS DIRECTED THAT

1. The Independent Children's Lawyer shall forthwith make contact with each of Ms GS, Ms AS and/or Mr P and shall:

   (a)thereto explain the issues between the parties in this case and the onerous responsibilities owed by each of them to the court and to the child in respect of their supervision of time;

   (b)       provide a copy of these Reasons to each of them;

   (c)make such regular enquiries of each of them, as the case may be, as to the progress of the orders for time otherwise made.

2. All parties be restrained and an injunction issue restraining all parties from denigrating the other parties in the presence of and within the hearing of the child.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Nineth & Nineth is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 421 of 2008

MS G NINETH

Applicant Aunt

And

MS F NINETH

Respondent Mother

And

MS MOLDOW

Respondent Maternal Grandmother

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter concerns, ultimately, parenting orders that will be made in respect of J born in August 2005.  This young boy, currently 4, has been in the care of his aunt since he was a tiny baby. 

2. The ultimate issues involved in this case are complicated by a number of matters, not the least of which is J’s Aboriginal heritage.  His best interests are the subject of competing contentions by his aunt, who has been his primary carer since he was a tiny baby, and his mother and grandmother.

3. Other parties involved are the child's mother and maternal grandmother.  Each share the same Aboriginal heritage.

4. Plainly enough, a relevant consideration in the ultimate decision about J’s best interests is the consideration enumerated in section 60CC(3)(h) of the Act. 

5. I have earlier today made orders facilitating the preparation of a family report by Ms D, family consultant.

6. That order embodies a request being made to the Director of Child Dispute Services to the effect that Ms D attend at E, where all parties and J now live and secondly, that Ms D consults with a number of people who, the competing parties agree, are people who will give the court an appropriate overview of the cultural issues involved in this case.

7. In a similar vein, that same order provides, again by agreement, for Mr R to provide input to that process to be conducted by Ms D.

8. It is accepted that J’s aunt and current carer has a previous psychiatric history, which, it seems from information garnered from the bar table, involved some form of involuntary treatment order.

9. Because the psychological health of the parties may well be germane to the issues ultimately to be decided by the court, I have also made orders that the parties participate in a psychiatric report to be prepared by a psychiatrist nominated by the Independent Children's Lawyer.

10. As will be plain from what I've said, an Independent Children's Lawyer is involved in this case and has already commenced the process and investigation inherent in that appointment.  Included among those tasks already undertaken is the subpoenaing of documents, including from the relevant Department of Community Services.

11. Whilst it can't be predicted with any certainty, it is anticipated that the processes required for each of the two reports just referred to will take some months.  When the matter is next before the court it will be informed by those reports.  In the intervening time an issue arises as to the nature and extent of the time, if any, to be spent by J with his mother and grandmother.

12. It is, perhaps an unfortunate consequence of what is described as the court's LAT process that, on what is called “a first day of trial” the court has available to it very little information - and no sworn information - by which a court can arrive at concluded views (albeit in the truncated environment inherent in the making of interim orders).  See eg C v C (1996) FLC 92-651.

13. By reason of those factors, the difficulties which invariably confront a court when making interim orders, in highly polarised disputes where factual assertions and counter-assertions are made by each of the parties, have been referred to in numerous decisions, including decisions of the Full Court.  See eg Goode v Goode (2006) FLC 93-286.

14. The truncated circumstances in which decisions sometimes have to be made on an interim basis have also been referred to in those cases.

15. I have attempted to make it plain to all parties in these proceedings - two of whom appear for themselves - that it is not the task, and indeed is beyond the task, of the court currently to make any findings about the plethora of contested factual assertions and counter-assertions advanced by each of them.

16. But having said that, it is in this case necessary to make an order for the intervening period for two main reasons.  J is as yet very young and has had, on any view of it, very limited contact with his mother and grandmother. 

17. Whilst the evidentiary foundation for any orders that might be made by a court in these difficult circumstances is very limited it is not non-existent.

18. In particular, a Children and Parents' Issues Assessment report is available to the court having been prepared by a family consultant, Ms D, in accordance with the court's child responsive program.

19. When reference is had to Division 12A of the Act it can be seen that this information (coming as it does from an expert independent of the parties), together with information garnered by the court from the bar table can form a foundation for a decision to be made on an interim basis even though this occurs on a very limited evidentiary foundation and within significantly truncated proceedings.

20. The Children's and Parents' Issues Assessment report is the evidentiary tool which the court must use in these circumstances to found the orders which ultimately will be made.

21. Ms D’s helpful report refers to a number of what she describes as "key issues".  What is clear is that a number of allegations are made by each of what I will call the households against the other.  In particular each household asserts against the other "verbal, emotional, psychological, and physical abuse" in and about the household of the other.  This four- year old child is caught in the midst of those significant allegations and counter-allegations.

22. It is troubling that, when Ms D asked J if he could tell Ms D about his brothers and sisters he stated he didn't have any.  When asked about his mother Ms D reports that:

    Once again [J] shrugged and indicated that he had no knowledge of his mother or siblings.

23. It might be seen as understandable, then, that Ms D recommends in her summary that:

    Given the interview with the parties, the child, and reading the history as outlined in the file it would be correct to assume that no relationship exists between [J] and his mother.  It is my opinion that [J] and his mother should spend time together as soon as possible so that a relationship can commence.

24. Ms D goes on in her short report to indicate why, by reference to what might be described as the normal emotional development of a young child, it is important for that child to have a significant relationship with the child's mother.

25. Sadly, it might be thought that people of Aboriginal heritage would intuitively understand the importance of children having a meaningful relationship with their mother in light of the appalling stories that are outlined in the Stolen Generations' Report of which many Australians have now latterly become aware.

26. In any event, that is what the Act envisages by reference to not only one of the two primary considerations but also the objects and principles of Part VII of that Act.  Equally, however, that fundamental consideration is frequently at odds with, or at least forms a tension with, the other of the primary considerations, namely the protection of children from abuse or harm. 

27. It is asserted by the aunt who has been caring for J, that her concerns about the prospect of abuse or neglect in the household of the child's mother and grandmother that have led to the historical position in which J now finds himself and which found her current concerns about time between J and his mother and grandmother.

28. In that respect it is, in my view, important to note that Ms D says:

    [The aunt] takes responsibility for [J] having no knowledge of his immediate family, yet appears to minimise the situation although she acknowledges the importance of a mother/child bond and can give no way forward in fostering that relationship.

29. Ms D goes on to say in that report:

    [The aunt] acknowledges that it is important for children to have a positive relationship with both their parents.  She firmly believes that to secure his safety it is necessary to supervise contact between [J] and [the mother].  Furthermore, she believes that she should be the supervisor.  Given the amount of conflict within the dynamics it is my opinion that this would not be in the child's best interests.

30. It seems plain to me that the prospect of the aunt being the supervisor for any such time - given the dynamics of what I know of these interrelationship - would be in fact disastrous for the child, and that it is extremely likely, in my view, that the child would see and be exposed to overt conflict.

31. It is entirely appropriate that a caring and loving person who has been caring for a young child for most of his life should seek to protect that young child from all forms of harm and abuse.

32. Equally, it seems to me understandable that a child's mother and grandmother should want to establish and maintain a meaningful relationship between them and the child in circumstances where, on any view of the evidence, that has not occurred meaningfully at any point up until now.

33. The difficulty is that, between the involvement of J in his mother and grandmother's life, lie a series of concerns raised by the aunt that relate to the potential for exposure to inappropriate behaviour of varying kinds in the household of the mother and grandmother. 

34. Examples are given of the child potentially being exposed to open illicit drug taking in the mother's household, and the potential for conflict and family violence within that household.

35. Equally, the mother and grandmother are at pains to say from the bar table that no such incidents would occur - at least when J is present.  I have attempted to make clear, it is impossible to pretend to not make findings in respect of factual matters while, in effect making "Clayton's findings" by preferring one view over another.

36. The fact is, in circumstances where there is no ostensible evidence upon which the court can rely, it is not possible to give credence to one piece of evidence or another, save in cases where admissions or inherent improbabilities attend the account of either.  On the limited information available to me it is not possible to say that inherent improbabilities or relevant admissions throw doubt on one party's version or the other. 

37. What I do know is that an independent expert has emphasised the fundamental importance to J of his establishing a relationship with his mother and, indeed, his siblings and broader family.

38. I do know that doing so is entirely consistent with the Objects, Principles, and a Primary Consideration in the Act.  I note that Ms D says that in her professional opinion this should occur "as soon as possible".

39. When the only evidence before the court is that which this court frequently has on a "first date", courts should in my view proceed by way of the old medical adage that we should first do no harm.  Put another way, the best interests of children in those circumstances direct a court to proceed as cautiously as reasonable.

40. Because of those considerations, and because of the fact that allegations - and I repeat allegations - are made by the person who has been principally responsibility for J’s upbringing and care for the vast bulk of his life, it seems to me appropriate that supervision should attend time between J and his mother and grandmother and siblings.

41. That involves though, further issues.  If supervision is put in place, what is the nature of the supervision, and in forming that decision, what is the nature and the extent of any risk which is said to be met by any such supervision.

42. In the latter respect I would respectfully adopt what the former Fogarty J said in an article published in the Australian Journal of Family Law about the nature of risk generally and, specifically, unacceptable risk ((2006) 20 AJFL 249).  What the former Judge there emphasises is that the nature and extent of the risk must be examined and steps taken to meet the appreciated risk by reference to that consideration.

43. Here, such risk is said to emanate from alleged past behaviour and information.

44. J’s aunt admits that she has not been in the household of the mother or grandmother for about four years.  The closest she personally has come to that household is to the outside of it.  Her concerns are based on what she asserts to be inappropriate behaviour and what can conveniently be described as a general lack of care on the part of the mother and grandmother historically.

45. I emphasise that these matters are, it seems, denied by the mother and grandmother.  As I have said in the absence of inherently reliable evidence, credence needs to be given to that denial just as credence needs to be given to the assertion.

46. The nature and extent of the potential risk is, as it seems to me, the exposure of the child to events which may occur in the household of the mother and the grandmother. 

47. The nature of the supervision required to meet the nature and extent of the risk can, in my view be broadly described as being a person who will act in a child-focussed and child-appropriate way so as to take steps to remove J from the household of the mother or grandmother should there be behaviour in and about that household that any responsible caring person predominating the best interests of a young child would remove a child from.

48. Two persons are put up by the mother and grandmother in that respect;  namely Ms AS and Mr P.  One of them is a person to whom the family consultant will ultimately speak for the purposes of preparing the report earlier foreshadowed.  There is an independent children's lawyer in this case who will clearly and unequivocally outline to each of those persons the responsibilities expected of them.  No legitimate reason is, in my view, offered in opposition to them as supervisors.

49. I will direct the independent children's lawyer to provide a copy of my reasons to each of Ms AS and Mr P when outlining to each of those individuals the onerous and significant responsibilities owed to this court, and owed to J, if they undertake the role of supervision, which, I am told, they have indicated they are willing to do.

50. Those matters, combined with the supervision itself, in my view, assist in meeting any such risk as is evidenced on the material before me. 

51. But they are not the sole matters which meet such risk.  I have already indicated that the time to be spent occurs against a background where, in effect, the eyes of the court, and in particular the eyes of a trained professional in the guise of a family consultant, Ms D, will clearly be upon this family and all members of it.

1. Secondly, E, where all parties now reside, is a small town.  It is difficult to imagine that untoward things could occur in the household of the mother and grandmother in circumstances where at least some indication of those untoward things would not immediately come to the attention of the aunt or, indeed, other people, including the independent children's lawyer who, among other things, has an independent obligation to monitor orders.  That, too, in my view, serves to ameliorate any risk.

2. Furthermore, on any view, the time between J and his mother and grandmother is somewhat limited.  The proposal is that there be four hours each Saturday.  The amount of time and the fact that, for the present, it occurs during the day are also factors which, in my view, ameliorate any risk said to arise to J from that time.

3. J’s mother raises from the bar table the prospect of overnight time.  It is understandable that a person who says they are a caring and loving mother motivated in their child's best interests would seek overnight time.

4. However it is a known fact in this case that J, on his own account, knows little, if anything, of his mother, siblings, and broader extended family.  This young boy will have a lot to deal with simply by reason of seeing (for effectively the first time in his life) and establishing a relationship with his mother and grandmother.

5. I am not persuaded then that at the present time I should permit of overnight time.

6. For those reasons, in addition to the orders made earlier in respect of the preparation of a section 62G report and a psychiatrist's report I will order as earlier outlined.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  22 March 2010