Olson and Kopp (No. 2)

[2008] FamCA 1230

FAMILY COURT OF AUSTRALIA

OLSON & KOPP (NO. 2) [2008] FamCA 1230

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

C & C [1998] FamCA 143
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Olson

RESPONDENT: Ms Kop

INDEPENDENT CHILDREN’S LAWYER: Ms Batenburg

FILE NUMBER: BRF 1691 of 2006

DATE DELIVERED: 4 December 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 4 December 2008

REPRESENTATION

APPLICANT: Applicant appears on his own behalf

SOLICITOR FOR THE RESPONDENT: Ms R M O'Gorman

INDEPENDENT CHILDREN’S LAWYER: Ms S Batenburg, Solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: SBA Family Lawyers

Orders

IT IS ORDERED THAT

1. The matter be adjourned for further mention before Justice Murphy at 9.30am on 26 March 2009 in the Brisbane Registry of the Family Court of Australia.

2. Pursuant to Section 65L of the Family Law Act 1975:

   a.a Family Consultant shall give any party to these parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders;

   b.and it is requested that the Family Consultant prepare a short written report or alternatively, an oral report at the hearing listed at 9.30 on 26 March 2009;

   c.the parties and the children L born … February 2000 and M born … July 2002 (“the children”) attend the first such appointment at 2.00pm on 11 December 2008 on level 3 of the Brisbane Registry of the Family Court of Australia.

IT IS FURTHER ORDERED UNTIL FURTHER ORDER AND SUBJECT TO ANY AGREEMENT REACHED BETWEEN THE PARTIES AND REDUCED TO WRITING THAT

1. Paragraph 4F of the Minutes of Consent made on 11 February 2008 be discharged, and replaced by the following orders:

   a.the father spend time with the children:

   1.from after school Friday 5 December 2008 until before school on Monday 8 December 2008;

   2.from 12 noon on 19 December 2008 until 12 noon on 23 December 2008;

   3.from 12 noon on 2 January 2009 until 12 noon on 6 January 2009;

   4.from 12 noon on 17 January 2009 until 12 noon on 20 January 2009;

   5.and thereafter from after school on Friday 6 February 2009 until before school on 9 February 2009 and between hours on those days each alternate weekend thereafter.

   b.changeover for time shall be as follows:

   1.during the school term, the father shall collect the children from the P State School after school on the Friday and return the children to such school at the commencement of school on the Monday;

   2.during the school holidays, at McDonalds at N.

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 Olson & Kopp is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF1691 of 2006

MR OLSON

Applicant Father

And

MS KOP

Respondent Mother

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter has a long history. As a consequence of those proceedings the father has had little or no contact until orders were made by consent in February of this year.

2. On 11 February this year minutes of consent were agreed. At that time the father appeared for himself and each of the mother and the Independent Children's Lawyer were represented by counsel.  As a result of negotiations and consultation (in each of the mother's and the Independent Children's Lawyer's case with counsel) minutes were agreed that saw orders that the children live with the mother and for the father to spend what might be described as graduating time with the children culminating as and from Sunday, 14 September 2008, with an alternate Sunday time regime from 9 am till 5 pm.

3. The mother has made in the past a number of allegations in respect of the father, including allegations of violence to herself and the children and statements and behaviours said to have been heard and witnessed by her and that are indicative of the children having been sexually abused by their father.  She has consistently maintained both of those positions and maintains them currently.

4. The orders were made in February, despite, it is said on her behalf, concerns by her at that time.  When those orders were made it was contemplated by me that, at a hearing today, those orders would, in effect, be reviewed.  I noted at the time that the Independent Children's Lawyer intended commissioning a further family report from Ms B for use by the Court on 11 December 2008.  Ms B had produced a prior report in respect of the proceedings and was familiar with the children and the issues raised by the parties.

5. One of the important aspects of the report contemplated when the order was made in February, was an opportunity for Ms B to further see and hear from the children with respect to how they were viewing time with their father, how they reacted to it and what their comments were about their father and spending time with him.

6. Ms B’s subsequent report is dated 1 December 2008.  The parties were provided with a copy of it earlier this week and it was tendered by the Independent Children's Lawyer Ms Batenburg at the outset of the hearing before me today when I read it for the first time. 

7. That report makes a number of recommendations, included in which is a recommendation that:

   "the making of final order be deferred for at least six months."

   It was also recommended by Ms B that:

   "the ICL be retained to take a watching brief until the re-establishment of the girls' relationship with their father is more advanced."

8. The concerns expressed by the mother remained during the report process by Ms B and remained in the proceedings before me today where submissions were made on her behalf by Ms O'Gorman. 

9. What clearly emerged from Ms B’s report was a clear opinion that the children needed to see more of their father.  For example, at par 6.2.9 of the report Ms B says this:

   "Time for the girls with the father should continue to increase.  However, because of the girls' gender the issues in the past of family violence, a lack of clarity around the father's rehabilitation from his gambling addiction and the poor level of cooperation and communication on the part of the parents, I do not foresee an equal shared care arrangement in the near future."

10. Those very same features, together with,, as it seems to me, ongoing concerns by the mother, ought in my view dictate that this Court should continue to proceed cautiously and conservatively with respect to the time that these young children should spend with their father.  Nevertheless, Ms B’s clear recommendations were for the increase to which she makes reference to occur, and to occur now.

11. With that in mind, the father indicated that he wished to have those recommendations made as interim orders of this Court.  No such application is before the Court. 

12. This Court is bound by the provisions of Div 12A of the Act which not only refer to matters of evidence and the way in which evidence can and should be received in proceedings in relation to children, but also provides for a mandatory manner and set of principles by which proceedings with respect to children must be conducted by this Court.

13. In particular s 69ZN of the Act prescribes five principles to which it is said the Court "must" give effect in making orders with respect to children.  Included among them is the principle that the Court must consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

14. That principle is uppermost in my mind in light of the clear evidence of Ms B, the only objective evidence in the case, to the effect that the children are in need of spending more time with their father. 

15. Secondly, the Court is instructed to take active direct control in managing the conduct of the proceedings and it is also mandated that the Court conduct the proceedings

    "without undue delay and with as little formality, and legal technicality and form, as possible."

16. Bearing in mind those matters and, in particular, s.60CC Considerations relating to the girls' best interests, I determined to permit the husband to make an oral application. 

17. In respect of that oral application I sought submissions from Ms O 'Gorman with respect to any potential disadvantage occurring to her client as a result of that application proceedings today as distinct from on another occasion. 

18. Ms O'Gorman pointed to what were asserted by her client to be some factual errors in Ms B’s report.  She gave an example in par 2.4 where Ms B says that the mother has seen the children poking each other on one occasion.  The mother says that in fact she told Ms B she had seen the children poking at each other on many occasions. 

19. Ms O'Gorman indicates that the mother would be desirous of presenting affidavits to the Court deposing to that very behaviour by friends who had themselves witnessed that behaviour.  Ms O'Gorman also indicated that the mother was desirous of presenting an affidavit to the Court from a friend who had "seen other behaviour of a sexual nature", a reference, I gather, to poking type behaviour.        

20. As the Full Court pointed out in C v C, and as has been the common practice of this Court for many years, the principles applicable to the hearing of an interim application take cognisance of the fact that the hearing is a significantly truncated hearing at which it is not possible for the Court to make findings, save those matters which are admitted or otherwise not capable of sensibly being rejected.

21. As a corollary, it is not possible for the Court to make factual findings with respect to issues, not the least of which are issues such as, for example, the drawing of an inference from behaviour that some form of improper sexual behaviour has occurred. 

22. Moreover, any such concerns and evidence as might be produced is produced against a background whereby the mother, who at the time was represented by counsel, consented to an order some nine months or so ago which has seen the children spending increasing amounts of time with their father.

23. In those circumstances it seemed to me that there was no significant forensic disadvantage to the mother in having the interim proceedings determined today, particularly when balanced against the need for an interim of the girls' best interests.  Accordingly, an application in terms seeking orders essentially similar to the relevant recommendations made by Ms B was permitted.

24. I record that I am aware of the fact that, even in interim proceedings the provisions of Pt VII of the Act must be complied with, including the considerations by which the Act determines the best interests of children - s 60CC - together with other sections of that part which embrace the Objects and Principles that are mandated as guiding the exercise of discretion in cases of this type.

25. I am also aware of the decision of the Full Court in Goode v Goode and what the Full Court there had to say about the nature of the parenting proceedings which are conducted on an interim basis.

26. Here the central issue is whether it is in these two young girls' best interests that they spend relatively short periods of overnight time with their father in circumstances where the mother objects to that occurring and says that she has some significant anxieties about it occurring.

27. As I indicated before, the Court has the benefit of a comprehensive second report from Ms B that specifically addresses some of these issues.  I do not in any way shape or form suggest that Ms B, or any other family consultant or other expert, decides cases for a Court.  However, in circumstances pertaining to an interim hearing and the nature of that hearing, such a report can be of significant benefit given the position which it occupies in terms of any contested allegations between the parties.

28. What I found particularly striking about Ms B’s report is what she had to say, or rather what she recorded of what the children had to say, about their own feelings, wishes and desires.

29. L is eight, having been born in February 2000.  She is coming up nine.  M was born in July 2002 and is six.  L, who is in year 3 at school, told Ms B:

    "Going to dad's place has been 'good'.  When they went to dad's place he taught her maths and she played on the computer maths games.  They went walking and to the pool at the units where he lived.  They went to Seaworld twice too and that was also good."

    She indicated to Ms B, and Ms B records at par 5.1.9:

    "There was nothing that scared her about her dad and nothing scared her about her mother."

30. At par 5.1.10 Ms B records L saying that there was nothing she would like to be doing differently, that her life was "pretty good" and, I note  and consider significant that:

    "it was better now she was seeing dad than it was when she wasn't.  She had fun with him and he took her to a lot of good places.  He would take her to Dreamworld next time.  She didn't know when that would be."

31. M who is, of course, younger than L said that she:

    "had the best fun with daddy playing Uno earlier and the best part of going to daddy's was swimming in the pool."

32. In light of the allegations and concerns at the centre of what the mother has to say about the girls in this case are the following extracts from Ms B’s report:

    "5.2.6The girls were hugging each other as they sat together and I asked if they hugged each other a lot.  They said they did and that they hugged 'mummy and daddy too.'

    5.2.7They both said they missed daddy.  When I asked if they felt 'a bit sad' when they said goodbye to him, [L] said, 'I don't know.'

    [M] said she thought mummy was 'scared of daddy.'  [L] said that mummy got someone to go with her when she dropped them off and picked them up and she was 'scared'.

    [L] said that daddy told her to tell mummy 'You don't have to be scared.'  [M] said they went to McDonald's to see their father and their mother 'got into a little fight with him' as he didn't tell her they were going swimming and she said that he should have so she could give them costumes to wear.  Since this time her father had bought swimming costumes for them to wear when with him."

33. The report goes on to record (again, significantly, as it seems to me):

    "5.2.10When I asked if they had thought of sleeping over at dad's the girls said that he had a room with a big pig and a teddy bear in it and that it was 'a nice room.'  They said that mummy was scared that if they stayed over he might hit them, but [L] said she didn't know if he would.  They both said that their father had never hit them since their parents separated, only when they were in Malaysia (at the time of separation).

    The girls were reluctant to say whether or not they wanted to stay over at their dad's and said this was because their mother would be 'scared' if they did."

34. It is an important consideration in the context of the instant application to note that the opposition by the mother is to overnight time.  She has, by the terms of what she has agreed to and continues to agree to, been prepared to permit the children to spend time during the day.  In that context it is important to record, I think, that Ms B says this:

    "6.2.2The father reports that his time with the girl has been happy and rewarding for all three of them and that the girls are keen to spend more time with him and in particular to stay overnight with him.  My discussions with the girls support this view, although it seems they are concerned that their mother will worry if they stay overnight with their father.  Whilst these children are, in my view, of insufficient age and maturity to attach great significance to their 'views' as that expression is used within s 60CC, that expression is nevertheless wider than simply seeking from children an expression of whether they prefer one eventuality over another.  By their actions, by their expressions, by their emotional reactions children express a number of different things and, in my view, have clearly expressed here an enthusiasm for seeing their father and a desire to spend significant amounts of time with him."

35. I should make it clear that in these interim proceedings I have not sought to ignore what the mother says about her concerns. Rather, I have sought to balance the nature and extent of those concerns with other issues relating to these two young girls, including the one that I have just referred to. 

36. Specifically in respect of the former, and the suggestion by the mother that the children are at risk of sexual harm from the father, Ms B also addresses this issue in the report.  She says:

    "The mother has continued to cling to her earlier stated concerns about the father having sexually abused the girls.  There is, however, no evidence which could be considered either compelling or independent that such abuse has occurred.  Even if the girls are excessively interested in their own genitals there are many possible explanations for such behaviour other than sexual interference by the father.  I can confidently say that I have seen no evidence to suggest anything but warm attachments between the father and the girls and the girls have not said anything to suggest any impropriety on the part of their father."

37. There is some evidence that the father may have made a poor judgment in taking the girls to a men's toilet some time ago, but this has not happened again as far as I am aware.  There is also evidence that at the time of the breakdown of the marriage, when the father's lifestyle was out of control, there was probably some excessive disciplining of the girls.  This too has ceased from all accounts. 

38. The report of the girls suggests that any such fear as they have in respect of physical harm is attached to their parents' fighting. They report, as I understand the position, no such incidents since that time, save for the incident earlier quoted in these reasons with respect to their "little fight" at McDonald's.

39. Certainly they do not say anything to Ms B to indicate that there has been any excessive disciplining, or indeed threat of physical harm, at the hands of their father since separation. Indeed, during the time that he has been seeing more of them, they would appear to indicate the opposite.

40. It needs to be understood that the allegations of the mother have a significant context.  As Ms B reports it:

    "Another significant issue which comes between the parents and their capacity to co-parent is the claims by the mother, which are supported by considerable evidence, that were addressed in previous family reports.  There is reason to believe that [the mother] experiences considerable anxiety at the prospect of seeing [the father] and it seems that this anxiety, based on her own past experiences with the father, has probably generalised to any contact or prospect of contact he has with the girls.  It is my opinion that the mother's anxiety is reducing as she sees that the girls are happy and relaxed on returning from spending time with the father, but it will be some time before she is truly relaxed about the girls seeing their father, especially staying overnight with him."

41. It seems to me that, at least partly for this reason, I ought consider making an order pursuant to s 65L of the Act. That order presents itself as being in the girls' best interests because it can give the mother, if she allows it to, some measure of comfort that time between the father and the children is, as it were, being monitored by an independent professional and provides her with the opportunity to raise with that independent professional, as it does for the father, any concerns that they each might have in respect of the increased time which I intend to order consistent with Ms B’s recommendations.

1. In that way, there is not only the prospect of avoiding such concerns resulting in Court proceedings for further applications, but also I hope an opportunity for the parties to discuss all of the ramifications of the concerns within each of their emotional contexts and the impact on the girls of those concerns with the assistance of a trained professional. It seems to me that it is precisely this sort of situation that the provisions of s 65L are designed for and I have little hesitation in making such an order in this case.

2. I propose to return the matter to me, with the parties having had the opportunity for that s 65L process to take place, prior to the commencement of the Easter school holidays.

3. I note that Ms B recommends that half the Easter and June/July school holidays be spent with her father. That is not an order I am prepared to make at this time until such time as I have further information from the s 65L process and any further updated information, on the occasion when the matter is next before me, which is prior to those holidays.

4. I have not mentioned any of the other specific matters contained in s 60CC of the Act.  It ought be taken as given that, in making the orders that I have, and in addressing issues such as the mother's anxiety as reported by Ms B, that I have had regard to, for example, the nature of the relationship of the children with each of their parents, the willingness and ability of each of the parents to facilitate and encourage and close and continuing relationship between the children and the other parent and the likely effect of any changes in the child's circumstances.

5. In that latter respect the facilitation of overnight weekend time with the father does constitute a change which I suspect will be seen by the mother as very significant and which is certainly different to that which the children have experienced for a considerable period of time.

6. However, by reference to the matters that I have referred to it seems to me that that change is as likely to have beneficial effects for the girls as it is to have any detrimental effects.  I have also, obviously enough, in arriving at this interim conclusion had regard to the objects of Part VII of the Act and, in particular, have attempted to ensure in making these orders that the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests.  

7. For those reasons I make the orders as earlier indicated.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  02 April 2009