OLAF & MILNE

[2018] FamCA 734

FAMILY COURT OF AUSTRALIA

OLAF & MILNE [2018] FamCA 734

FAMILY LAW – CHILDREN – Parenting – interim proceedings – where the mother makes an oral application to vary the current parenting arrangements – where one of the children has made an allegation of excessive physical discipline by the father – where the father concedes he physically disciplined the child – where both children have been engulfed by parental conflict for most of their life - where the Court cannot test the evidence at an interim hearing – interim orders made in the best interests of the children – proceedings listed for expedited final hearing

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
Banks & Banks [2015] FamCAFC 36

APPLICANT: Mr Olaf

RESPONDENT: Ms Milne

FILE NUMBER: BRC 5861 of 2011

DATE DELIVERED: 2 August 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 2 August 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Sambanis Family Law

SOLICITOR FOR THE RESPONDENT: A P Hodgson & Associates

INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

Orders

1. That the mother be granted leave to make an oral application for the children, X born … 2006 and Y born … 2009 (“the children”) to spend time with the father from 9.00am to 5.00pm Saturday and 9.00am to 5.00pm Sunday each alternate weekend.

2. That the mother’s oral application be dismissed.

3. That by no later than 4.00pm on 9 August 2018 the father file and serve an amended Initiating Application setting out his final orders sought.

4. That by no later than 4.00pm on 16 August 2018 the mother file and serve an amended Response setting out her final orders sought.

5. That the Independent Children’s Lawyer be at liberty to apply on short notice, including after the parties have complied with Orders 3 and 4 hereof if there is dispute as to obtaining or inability to fund by Legal Aid Queensland an updated family report.

6. That the parents immediately take all reasonable steps to engage a suitably qualified Psychologist to provide therapeutic counselling and support to the children, and to the extent of payment of such services are required, the parents shall share equally in the costs of that counselling.

7. That the children’s counselling be undertaken with the following conditions:

   (a)Each parent be at liberty to provide a background to the counsellor, but are restrained from providing to the counsellor copies of Court material;

   (b)If the parents cannot agree as to a counsellor within seven (7) days of the date of these Orders, the parents shall engage a counsellor nominated by the Independent Children’s Lawyer; and

   (c)Once identified, the Independent Children’s Lawyer be granted leave to produce to such counsellor a copy of the family reports prepared by Ms B and psychiatric report prepared by Dr C dated 24 November 2016.

8. That these proceedings be adjourned for Trial Directions at 9.30am on 12 October 2018 in the Family Court of Australia at Brisbane.

9. That these proceedings be set down for Final Hearing commencing at 10.00am on 17 December 2018 in the Family Court of Australia at Brisbane.

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 Olaf & Milne 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 BRISBANE

FILE NUMBER: BRC 5861 of 2011

Mr Olaf

Applicant

And

Ms Milne

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. The history of this matter, sadly, reveals that the parties separated many years ago, in fact in May 2011.  At that stage, their daughter, X, was four and half years of age and their son, Y, was two and a half years of age.

2. On 29 March 2012, Jarrett FM (as he then was) made final orders in relation to parenting of the children.  I note that is now some six and a half years ago.  Although the orders were varied firstly by Judge Purdon‑Sully in respect to travel and incorporation of specific issues orders in August 2012, and further by Judge Jarrett under the Slip Rule, essentially, despite an application for recovery filed by the mother in April 2013 (which she discontinued on 24 April 2013), the parents seem to have been broadly complying with the final orders made in respect of the children as set out by Jarrett FM.  These orders provide for the children to live with the mother and to spend substantial and significant time with the father.

3. The father saw the need to file an application to vary those orders substantively by changing residence on 14 March 2016.  He filed his application in which he proposed, inter alia, the children live with him and spend time with the mother from after school Friday to before school Monday and overnight in the off Tuesday.  Sharing the school holidays was still envisaged.  In May 2016, the mother responded.  She proposed that the children live with her; that she have sole parental responsibility and that the father’s time be reduced to supervised time for a period of six months, after which it would graduate to day time only.

4. Those interim applications came before his Honour Judge Jarrett (as he now is) on 9 May 2016.  I have no Reasons for Judgment available to me for the order he made on that date, which was to dismiss both interim applications for variation.  At about that time I understand he may have appointed an Independent Children’s Lawyer.

5. The effect of the order of Judge Jarrett on 9 May 2016 to dismiss the interim applications of the parties was that the orders of 29 March 2012 remained in full force and effect.  I note, because it is important in the context of recent events, that Judge Purdon‑Sully, when she made orders on 14 August 2012, primarily it seems in respect of the children spending time with the father in South Australia during the school holiday period, at paragraph 6 of those Orders, ordered:

   6.        That neither party is to use corporal punishment when disciplining the children when they are in their care.

6. Judge Jarrett caused, through the Independent Children’s Lawyer, family report interviews to be undertaken by Ms B which were conducted on 13 October 2016, nearly two years ago.  Her report on 24 October 2016 was, in his Honour’s view, somewhat deficient as he required Ms B to have reference to a psychiatric report of Dr C as well as some subpoenaed notes.  This caused Ms B to prepare an addendum to her family report on 30 January 2017, but it is apparent that it did not include any further interviews of the parents at that time.

7. When the matter next came before his Honour on 2 February 2017, and because it seemed that the issues of sexual abuse were still alive and therefore the matter could be suitable for the case management processes in the Magellan list, his Honour transferred the matter to the Family Court of Australia and in May 2017, just over 12 months ago, Registrar Spink allocated the matter to a trial pool in this Court’s case management process.

8. During my exchange with Mr Horvath today who represents the mother; Ms Sambanis who represents the father and Ms Rayment who acts as town agent for Ms Bint who is the Independent Children’s Lawyer, I drew to the parties’ attention paragraph 131 of the report of Ms B filed on 6 February 2017 in which she said:

   131     The overall assessment of the child protection allegations by the department were there is no current evidence that the children have suffered significant harm but that they remain highly vulnerable to experiencing significant emotional harm that is cumulative in nature due to the ongoing custodial conflict between their parents and while X’s alleged sexualised behaviours may be evidence of emotional harm, a lack of contextual information and evidence makes it difficult to determine this.  On balance, it would be considered highly intrusive and potentially traumatic for Child Safety to conduct a further investigation based on the limited information currently available.

9. Although that was the assessment made by the Department at the time, a broad reading of the report of Ms B makes it clear that she adopted that position, namely that the children were now being subjected to potential psychological harm because of the conflict between the parents and that they were, therefore, vulnerable.

10. The mother says that an incident occurred on or about 10 June 2018.  I will refer to that matter shortly.  It came to the attention of the Court in a slightly unusual way.  On 26 April 2018, the matter had made its way from the trial pool to a case management hearing before me as a Judge of this Court.  At that stage, the father was unrepresented.  He was asserting a number of concerns about the mother’s parenting.

11. Again, let me say, this case, notwithstanding the apparent continued observation of earlier interim orders and final orders, is full of allegations and hurtful remarks by each parent against the other.  The father said he had a number of witnesses who were going to support his concerns about the children’s mother that would, in his view, support his proposition that the children should now live with him, something, of course, strenuously opposed by the mother.  Accordingly, on 28 April 2018, I directed the father to file those Affidavits.

12. The matter was again before me on 1 June 2018 where the father was again unrepresented.  Prior to that date, the father had filed an amended Application, which I clarified with him, which was that he no longer persisted with his Application initially filed in 2016 that the children live with him.  I noted that order 1 is missing that factor but was clarified on the day.  Otherwise the father sought to increase the time that the children would spend with him to each alternate weekend from after school Friday to the start of school Monday.  There was still some disputes about parental responsibility and whether Christmas holiday time should be half in a routine of week about or two week blocks.  These were the matters identified on 1 June 2018 as being required to be determined by the Court.

13. Mr Horvath then, as now, appeared for the mother.  Ms Bint was here as the Independent Children’s Lawyer.  The order perfected on 1 June 2018 makes it clear that they were the issues that were in dispute at that time.  As a result, the matter was listed for one day before me in September 2018.  Ms Bint, a very experienced Independent Children’s Lawyer, was invited to conduct a Legal Aid conference, both parties being legally aided.  I was advised on 19 July 2018 that the parties had attended the Legal Aid conference but that the matters had, in effect, “blown up”.  On 19 July 2018, I vacated the trial as Ms Bint indicated there was no way the matter could be contained within one day.

14. However, the mother, at that time, had not put before the Court evidence about the events that occurred after 1 June 2018.  I directed her to do so and for the father, if possible, to respond.  The matter was to come back quickly, in fact within about two weeks.  The mother has, as a result, filed and served, and I have read, her Affidavit of 25 July 2018 and the Affidavit of Ms D filed 25 July 2018.  The father filed an Affidavit in response electronically, it seems, on 1 August 2018.  I have read that material as well.

15. Ms Bint is unable to be with us today, such an event being known to the Court, and she has thankfully been able to arrange for an experienced Independent Children’s Lawyer, Ms Rayment, to appear on her behalf.  To be fair to Ms Rayment, she has not had the opportunity, as Ms Bint has had, to be on top of all the material in the matter.  However, her assistance today has been helpful.

16. At the request of the Court, the mother has made an oral application to vary the current orders.  I say that because, notwithstanding the material that has been filed, no such application to vary by the mother has been made.  I did not want the parties to be further delayed by requiring them to do what many would expect them to do and that is properly articulate their position on an interim basis.

17. Mr Horvath had some initial instructions, then revised them, and ultimately articulated to the Court that the mother says the current orders should essentially be varied so that the children continue to live with her and spend time each alternate weekend between 1.00pm and 5.00pm on the Saturday and 1.00pm and 5.00pm on the Sunday of that weekend.  This would be a very significant reduction in the time the children spend with the father, which the mother believes is in their best interests as a result of the events that have occurred as and from at least 10 June 2018.  I allowed that oral application to be made.

18. Ms Sambanis, on behalf of the father, opposes the oral application and says that there should be no variations to the current order on an interim basis.  Ms Rayment, on behalf of the Independent Children’s Lawyer, adopts the position that the current orders should continue.  They are the competing proposals today.

19. It is worth, of course, noting, as the Full Court did in Goode & Goode (2006) FLC 93-286 and more recently in Banks & Banks [2015] FamCAFC 36, that interim hearings are always truncated and there are many such interim hearings where it is impossible to reliably make any findings about disputed facts. The undisputed fact is, even if there have been occasionally over six years, some disturbances in the arrangements, essentially the orders made by Jarrett FM in March 2012, continue to be complied with until recently.

20. Of course, the children are much older and as a result, there have been many developments in their life that have not been reviewed.  Nonetheless, it cannot be said to be disputed that the history of the matter since 2012 has been essentially compliance with the orders.

21. It is also apparent that there has been increasing tensions that have developed between the parents who, as I say, have now been separated for over seven years.  In fact, they have been litigating about their children longer than they were in a relationship.  That, I think we can all accept, creates some challenges for these children as they become more aware of the conflict between their parents and the effect of that conflict upon their day‑to‑day life.

22. The issues which have brought us to the Court on an urgent basis arise from events on 10 June 2018 initially.  The mother’s evidence is that after changeover on that day, X, who is now eleven and a half years of age, indicated to the mother that she had been the subject of corporal punishment and disciplining by the father, at least because she would not get in the bath.  She claimed that the father had yelled at her; the Xbox had been ripped out of the wall and the father had threatened to destroy the Xbox with an axe.  The child said to the mother words to the effect that the father “started swinging an axe because I wouldn’t get in the bath,” and that she was fearful of this and that “she can’t go back”.  Of course, the mother, being told those things as she claims and deposes to be the case, would have been concerned.

23. There does not seem to have been another event until 27 June 2018, in the material at least, when the mother was contacted by X’s best friend’s mother, X’s best friend being E of the same age, and the mother being Ms D, who has filed the Affidavit.  It seems that E had received a text message at about midnight from X when she was at the father’s home.  The text, which is before the Court although not yet authenticated, says words to the effect that “the father is abusing her and she might end up dead soon”.  Any parent would be concerned by seeing a message like that.

24. On or about that day, the child, it seems, became emotionally distressed at school; alleged that the father had used further physical discipline on her (pulling her arm) and is alleged to have told the guidance officer, Ms F, that she was “sick of seeking [sic] his penis out”.  This allegation has come out of left field.  It is not suggested, it seems to me, that the father had exposed himself to the child.  It is hard to know what the allegation actually is.  What is clear, however, is that she felt that she had been the subject certainly of physical disciplining by the father.

25. It is said, although there is no corroboration as yet, that the school principal, being aware of the disclosure to the guidance officer, Ms F, made a mandatory report to the Department.  Shortly thereafter, it seems, the mother took the child to the child’s general practitioner.  I have no school records before me today; I have no medical records today; I have no records from the counsellor.

26. However, clearly, through some process, the Department of Child Safety became involved and on 2 July 2018, which was in the first week of the last school holidays, Officer Ms G from the Suburb H section of the Department of the Child Safety rang to speak to X on 4 July 2018.  Interviews apparently took place on that day.  After the interviews, the mother says the child returned to her home, curled up on her mother’s bed and said words to the effect “this is the only place I feel safe, mum”.

27. Then curiously, and somewhat unexplainedly, on 7 July 2018 the father commenced time with the children for the second half of the school holidays.  Changeovers were a bit problematic but ultimately took place, the mother says, at 4.58pm at the police station which is the location for changeovers.

28. I accept that the mother, in her Affidavit, gives every indication that she is aware of her requirement to comply with orders of the Court, for which she deserves credit.  She was, it seems, challenged by the child as to why she had to go and the mother explains, on her version, telling her why.  What is not explained and which is a great curiosity to me, is that the children, both Y and X, spent that week in the father’s care without any evidence before the Court that it did not proceed well.

29. There are, for example, no comments by the mother that, upon return to the mother on or about 16 July, there had been any incidents during the school holidays similar to the “axe incident” or that the father continued to physically discipline; yell; scream or otherwise emotionally abuse the children.  It may be that the children did say things to the mother but that is not in the Affidavit that she filed and I would have thought it would be if it had occurred.

30. The father, in his reply, which I will get to shortly, does not say that there were any incidents during that week.  It is, therefore, at least on an interim basis, open as one of the current positions that the very inappropriate event involving the father’s conduct of 10 June 2018, was dealt with between the children and the father during the school holiday period.

31. The mother would say, however, and does say, that that is not the fact because on 16 July 2018 when she collected the children from school, she asserts that X said to her words to the effect, “When you go to Court this Thursday, tell the judge I hate him,” which I take it she meant the father, “and I would rather die”.  19 July was the date the parties were in Court as a result of the relisting at the request of the Independent Children’s Lawyer.  There is no way of knowing, on the evidence before me, how X knew the parents were in Court on 19 July.

32. By 17 July 2018, Y was starting to express a similar view to his sister.  The mother records him as saying to her words to the effect, “I hate him.  I don’t want to go.”  On that day, which was a Tuesday and therefore, it seems, a changeover to the father that afternoon, the mother was unable to get the children to school before 11.30am.  The children, it seems, went to the father again on that night in accordance with the orders.

1. That same night, the mother was contacted by Constable Martin of the police with a view to the children giving an interview to the police the following day, 18 July 2018.  The mother collected the children from school at 2.00pm on that day, took them for a police interview, but there is no evidence before me as to what they told the police.  The only evidence I have is that the police allegedly said to the mother words to the effect “they find the situation at the father’s home inappropriate and disturbing,” and there is not enough evidence to charge the father with anything.

2. The children did not spend the following weekend with the father but were due to spend Tuesday night, 24 July, with the father.  The mother says that this day was a day that the children refused to go to school.  The father also says that the children have refused to go to school in his home.  There is no evidence before the Court that suggests what other reasons there could be for children showing opposition against school.  The evidence of the mother’s witness, being the mother of E, confirms the mother’s version of what happened in the text message.  It also confirms the close relationship between E and X.

3. The father has replied to these allegations.  He says, in effect, that there are rules that he imposes in his house about the use of the Xbox after school but only until 6.00pm.  He says on Saturday, 9 June from about 7.00pm, he had implored X to have a bath.  He makes the comment that since she turned 11 years, she has become resistant and talks back to him.  He says at 11.30pm, I take it on 9 June, he checked on the children and X had not had her bath and was still using her Xbox.  At paragraph 12, he says she said to him when told to shut it down and at least go to sleep, “I’m in the middle of a game.”  Clearly, the father does not regard it as appropriate that a child of this age should be on the Xbox at 11.30pm at night.  It is not clear, if that occurred, whether the mother has a similar view.

4. The father engages with the conflict that occurred between him and X as described to the mother by confirming that he did smack the child but not enough to cause a red mark, he says he did grab the child by the wrist in seeking to get the Xbox and said that he would use an axe to destroy the Xbox and had the axe in his hand when he said this to the children.  I am satisfied that it is likely that if the father had done this, it was capable of causing anxiety to the children, as the mother says the children felt.

5. The father says at the earliest opportunity when the children returned to school, which was on or about 10 June, he spoke to the guidance officer, Ms F, about the incident and how to manage the children.  He confirms that he has been interviewed by the Department of Child Safety but says there is no indication at all of any actions being taken by him, by the department or the police.  He acknowledges that X urgently needs therapy and the parties have been in dispute about how and who should achieve this, but I believe that is being dealt with now.

6. The father says, and I accept, the mother has not had a chance in this case to respond to this, that at the changeover which occurred on 24 July 2018, X ran to his car in the usual way.  That would not be consistent with a child who was fearful of the father.

Discussion

1. There has been a longstanding arrangement for the children to live primarily with the mother and spend time with the father.  The mother’s proposed variations would be a significant reduction.  It would also, it seems to me, run the risk of giving a message to the children that they are not safe in the father’s home.  That message is not a message which, on the evidence before me, is consistent because, for the week from 7 July 2018, they spent a week there without being at any risk whatsoever, it seems, and nothing occurred.

2. I cannot be satisfied to the requisite standard on an interim basis, even taking the mother’s case at the highest, that the children are at risk of physical harm in the care of the father.  I do accept that the children could be at risk of some psychological harm if the incident on 10 June 2018 with the axe, or any other use of corporal punishment or yelling at the children, is repeated.

3. The father’s reaction by using an axe to make a point, it seems to me, was entirely inappropriate and capable of causing fear to the children.  He needs to understand better how to manage the behaviour of teenagers who can, at times, be oppositional and challenging.  However, it would, in my view, not be in the best interests of the children, as Ms Rayment succinctly identified, to empower the children on this one incident, and what are said to be views expressed to the mother, to significantly reduce their time with the father in the way proposed by the mother.

4. Furthermore, as Ms Rayment contended in her submissions to the Court, if the children are at risk of harm in the father’s care, they are as much at risk at night as they are during the day; whether having a bath or not having a bath; whether using the Xbox or not using the Xbox.  Seen within the context of the six year relationship since the orders were made in 2012, I am not prepared, in the best interests of these children, to reduce the time as suggested by the mother.  As a result, her oral application for a variation of the orders will be dismissed.

5. Sadly, however, these events have added a further layer of conflict in this litigation.  What seemed, on 1 June 2018, as a relatively narrow issue that could be dealt with without much further pain to the parents or cost to Legal Aid, is no longer necessarily achievable.  Mr Horvath, for the mother, was unable, and I make no criticism of this, to obtain the instructions he needs to determine what long term orders the mother now proposes.  Ms Sambanis, who was not representing the father when he filed the Application in a Case which set out, and which was the basis for me determining the issue was of a narrow compass, also needs to get instructions.

6. I have made orders that allow the parties’ positions to be identified within 14 days.  I need to bring the conflict between this couple to an end as best I can by making findings about their behaviour; their conduct and the best interests of the children.  As a result, in the limited time that the Court has available this year, I have taken the view that this matter requires trial determination.  The matter will be listed for hearing in the week commencing 17 December 2018 before me.  I am not able to determine the length of the trial at this stage.

7. Firstly, as my directions indicate, I require Ms Bint, who is the Independent Children’s Lawyer, and as I said, I appreciate the assistance of Ms Rayment today, to form a view about whether an updated family report by Ms B, if available, is necessary.  I cannot form that view myself at the moment because of the uncertainty as to how wide the issues in dispute between these parties has now become.

8. There will obviously be costs to Legal Aid of an updated report.  There could be delays.  It may be that doing the best everybody can, the trial date of the week of 17 December 2018 cannot be achieved.  As a result, I have given this matter a date before me on 12 October 2018 to review the preparedness for trial.  In respect of my concerns about whether or not other events could occur, I have made an order for the Independent Children’s Lawyer to have liberty to re-list this matter at short notice.

9. The only matter that remains, in my view, is whether it is necessary and in the interests of X and, I suggest, also Y, to have an opportunity outside of their parental structure to discuss with somebody concerns they may have about their parents or their current living arrangements.  Now that could be achieved through the family report, but it seems to me that X’s public protests, which the father says are nothing more than her seeking help or attention, have a hint of concern about them that are best dealt with initially at this time, in a therapeutic environment.

10. Accordingly, I propose to make an order for counselling, noting that the parents are of modest means but that they are devoted and loving parents who want the best for their children and have, no doubt, an awareness of how untreated emotional distress could have a life shaping effect on their children’s functioning.

11. Before doing so, I again say that the report of Ms B makes it clear that these children have been engulfed by a parental conflict for most of their life.  They would be now well aware of the lack of respect and trust that each parent has for the other parent, and it would not be unusual for children, particularly as they approach teenagerhood, to play one parent off against the other; to tell one parent what they think that parent wants to hear and in other ways be a little mischievous.  These children should not be given the opportunity to do that as it is contraindicative to their healthy and orderly psychological development.  The parents are the context for their children’s distress in many ways and they must look at their own behaviour in that context.

12. Having said all that, the father’s behaviour on 10 June 2018, even on his evidence, was highly inappropriate, provocative, likely to cause fear to the children and has been a catalyst for another range of disputes between these parties sadly.  There should be no repeat of that, not just because the order made by Purdon‑Sully FM (as she then was) prohibits it, but because to do so will very much put at risk the father’s relationship with his children in the long term and would be contrary to their best interests.

13. He could do a lot worse than be seen to be taking account of his conduct and take responsibility for his inappropriate actions.  I do not know, because he does not tell me, to what extent he has sought to assuage any future fears of these children, but he will need to be able to demonstrate that that was a one‑off with a sadly significant consequence.

14. It is not appropriate in my view to order parents get a mental health plan for their children.  Mental health plans are a matter for clinical assessment and prescribing by a suitably qualified medical practitioner.  These children do appear to have a general practitioner who usually looks after their needs.  That doctor may be convinced, in view of what has occurred, that these children will benefit from a mental health plan, but within those constraints I make this order:

    a)The parties shall immediately take all reasonable steps to engage a suitably qualified psychologist to provide therapeutic counselling and support to the children, X and Y, and to the extent that payment for such services is required, the parents shall share equally in the costs of that therapy;

    b)The therapy shall be undertaken with these further conditions:

    i)Each party shall be entitled to provide to the therapist a background but the parties are restrained from providing to the therapist copies of their court material;

    ii)If the parties cannot agree on the therapist within seven days, the parties are to engage a therapist nominated by the Independent Children’s Lawyer; and

    iii)Once identified, the Independent Children’s Lawyer shall have liberty to produce to the therapist a copy of the family report by Ms B and the psychiatric assessment by Dr C.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 2 August 2018.

Associate:

Date: