Palantine and Palantine

[2009] FamCA 1081

FAMILY COURT OF AUSTRALIA

PALANTINE & PALANTINE [2009] FamCA 1081

FAMILY LAW – CHILDREN – Interim application – whether the father should spend time with the children on an interim basis – whether there is an unacceptable risk to the children if the father was to spend time with the children

Family Law Act 1975 (Cth) ss 60CA, 60CC(2)

B & B [1988] HCA 66
M & M [1988] 166 CLR 69

APPLICANT: Mr Palantine

RESPONDENT: Ms Palantine

INTERVENOR: Chief Executive of the Department of Disability, Housing & Community Services

INDEPENDENT CHILDREN’S LAWYER: Strong Law Pty Ltd

FILE NUMBER: CAC 2273 of 2007

DATE DELIVERED: 15 October 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 15 October 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Routh, Consensus Family Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Clifford, Dobinson Davey Clifford Simpson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Strong

SOLICITOR FOR THE INTERVENOR Mr Tandy

Orders

1. The matter is adjourned to 1.00 pm on Thursday 22 October 2009 for further determination of interim matters and further directions about the final hearing including, but not limited to, the identify of and the Terms of Reference for a Single Expert Witness.

2. The children, L born … August 1999, C born … December 2000 and E born … June 2003, will spend time with their father on this coming weekend, that is from Friday 16 October 2009 until Sunday 18 October 2009 as follows:

   (a)L and E will be collected by their father from the N Shopping Centre at 5pm on Friday 16 October 2009 and will spend time with him until they are returned with their brother C on 3pm at the N Shopping Centre on Sunday 18 October 2009.

   (b)C will be collected by his father from the school upon completion of the school camp as advised to the father by the Independent Children's Lawyer after she has made appropriate enquiries.

   (c)During the time the children or any of them are with their father the children’s paternal grandmother will remain with the father at all times and the children’s paternal grandfather will not be in the company of his wife or the children during the period.  I note further that Ms D (the father’s partner) will not be present during any of the time the children are with their father on this weekend. 

3. Neither parent will discuss with the children during the time the children are with them until the matter comes next back before the Court, these proceedings before the Court or any allegations that the children may have made in the past.

4. I direct that a Family Consultant be assigned to this matter before the Court and to remain with it until its completion and that that Family Consultant, unless it is impossible for her to do so, will see the children in the week commencing 19 October 2009 and discuss with the children such matters as they wish to discuss, explain the nature of the proceedings before the Court and discuss with them, if necessary, the experiences that the children have had with their father.  Under no circumstances however will the children be required to make any statement to the Family Consultant about their views or about what they want for the future.  The Family Consultant is not required to report in a written form to the Court although it may be of assistance if the Family Consultant was able to attend at the next hearing of this matter on 22 October 2009 to provide an oral feedback to the parents if that is required.  Nothing prevents the Family Consultant from providing feed back to the parents prior to that time if she considers it to be appropriate to do so. 

5. The pre-existing orders about the time that the children would spend on the telephone with their father are suspended until after this weekend and will be given further consideration on the next occasion the matter is before the Court. 

6. The Chief Executive and his legal advisers has leave to examine any material that has been filed in these proceedings or to have made available to them any material the parties wish to convey to him in relation to these proceedings or the children. 

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAC 2273 of 2007

MR PALANTINE

Applicant

And

MS PALANTINE

Respondent

REASONS FOR JUDGMENT

Introduction

1. The issue before me is part of a longer process of trial and is complicated by factors which in some cases can only be resolved by judicial determination.  Presently, that determination is not possible without some further information.  It is possible, albeit I do not believe it is appropriate nor will I pursue this course of action, that I would interview the children separately or that they could become witnesses in this Court and give evidence. I do not consider either of those possibilities appropriate in the circumstances.

2. It does seem to me, however, that it is necessary for the children to, at some point before I make my determination, be the subject of some consultation with an appropriately qualified person who is able to give me a discerning and expert view about the sorts of things the children are reporting, the reasons why they are likely to be reporting them, including, if it is the case, that what they are saying is true and that this is having a dramatic and traumatising affect upon the children.

3. Equally, if what the children are saying is not true, then this maybe also indicative of the fact that the children require some assistance because, by making what are substantive and serious allegations against a parent, it is obvious that there will be consequences. Why they would want those consequences or, alternatively, why one of the parents would want those consequences to come to fruition are factors that I have to take into account under the matters under the relevant provisions of the Family Law Act 1975 (Cth).

Ensuring the best interests of the child

1. I am conscious of the prescription under the Family Law Act 1975 (Cth) that I am to act in accordance with the best interests of the children.[1] I am also conscious of the fact that the primary considerations for determining the best interests of the children are whether there is a benefit to the children in having a meaningful relationship with each of their parents,[2] and their safety.[3]  In many cases, that dichotomous consideration is one of two mutually conflicting principles. This case may well be such a matter. 

   [1] Family Law Act 1975 (Cth) s 60CA.

   [2] Family Law Act 1975 (Cth) s 60CC(2)(a).

   [3] Family Law Act 1975 (Cth) s 60CC(2)(b).

2. At this point, it is impossible, on the state of the evidence, for me to make a determinative view about the extent to which the children may incur some physical danger from the time they spend with their father; let alone the psychological damage that may be occasioned to them by being with either parent for any extended period without their having the opportunity to be with the other parent to really test what it is that they perceive or what they are told about the other parent.

Is there an unacceptable risk to the children?

1. In those circumstances, I am to keep in mind, above all, in line with the High Court of Australia’s decisions of B & B[4] and M & M,[5] that I should not expose the children by any orders I make to an unacceptable risk. 

   [4] B & B [1988] HCA 66.

   [5] M & M [1988] 166 CLR 69.

2. The situation before me is this: it is agreed that the children should be the subject of some further assessment by a single expert, there is at this point no agreement about who that expert should be.  There is some advantage in the expert being a person who is available sooner rather than later, so that the matter can be finally resolved before the Court in a substantive way with the benefit of that person's expertise and skill.

3. On the other hand, the fact that there is an earlier appointment available may not necessarily mean that the issues will be the subject of a report and effectively change the time at which the matter could be finally dealt with by the Court.  I do not necessarily accept that the first cab on the rank, so far as seeing the people, is necessarily the best cab for the parties or the children.  Equally, I should make it clear I am convinced that person is not the best person for the children.

4. Given that that will take some time, it is important that I should have in front of me, so far as I can, such information as may be appropriate to make decisions about what will happen with the children and the relationship, if any, they will have with either parent between now and the time when the Court can make a more informed decision based on all of the relevant evidence.

5. In this regard, it is suggested that there should be a postponement over this coming weekend of the time the children spend with their father to enable Ms Clifford on behalf of the wife to examine some of the documents in greater detail and certainly to allow Ms Strong as the Independent Children’s Lawyer to both consider the documents such as the police record of interview with the boys and to discuss them, if necessary, with either of the lawyers for either of the parents or with Mr Tandy.

6. Equally, Mr Tandy has, on behalf of the Chief Executive, some difficulties in obtaining comprehensive instructions about where the matter might be going from the Chief Executive's point of view.  It would be advantageous for that to occur as soon as possible.  These are factors which suggest that the adjournment sought by the Independent Children's Lawyer for a short period of a week would be appropriate.

7. However, I am of the view that, provided I could take reasonable steps to ensure that there is no unacceptable risk to the children in being with their father, that it would be appropriate that the time with their father should be reinstated as of this weekend, to some extent.

8. The issue about the way in which the children's safety can be preserved is dependent, in part, upon the circumstances in which the time with their father occurs.  If I were to accept that it is possible, and hence a risk, that the children have suffered physically at the hands of their father or psychologically at the hands of their father as is set out in the Affidavit of the mother and is apparently recorded in the interview with the police, then, if I were to be satisfied that those things were true, then it is the case that the children should not be alone with their father until either safeguards can be put into place.

9. If the allegations are true, then, in my opinion, if there is a responsible person there at the same time as the children are with their father, it is improbable, to the point of being an acceptable risk, that the father would not reinstitute the sort of conduct that is being complained about for fairly obvious reasons (i.e.,  self-interest, if none other). To do so, would be to seriously put at risk the possible future relationship, if any, that the children might have with him.

10. According, if for no other reason, the attendance or presence of a supervising person should, in my opinion, operate as a deterrent to the repetition of the conduct that is complained about, if it is true.

11. The person involved, therefore, ought, therefore, to be someone who is responsible.  Ideally, it would be someone above reproach and it would also be someone who would be familiar to the children and not engage them in further artificiality about the relationship or about the resumption of the time they spend with their father. 

12. The issue that arises in this matter is whether the appropriate person in this regards is Mrs Palantine Snr, the father's mother, the children's paternal grandmother.  There are allegations that the paternal grandfather is someone who has been in the past traumatic towards the children.  The allegations about him contained in the mother's Affidavit as the reports of what the children say are not clear.  I understand that there is some form of antipathy of the children towards their paternal grandfather, if the reports are correct, but the reasons for it are not entirely clear except for the fact that he appears to rouse on them or is loud or shouting or whatever it may be. 

13. In any event, there is no particular reason why the children should be exposed to any more stress or difficulty than is necessary at the present point, particularly as there is apparently a reluctance on them to spend any time at all.  Hence, if I were to look at that, I would exclude from the weekend the children's grandfather, not because I am making any finding against him but rather because it enables me to consider, in an objective way, without making any determination, some of the elements that would go towards the determination that a risk was acceptable or unacceptable.

14. I believe the children's paternal grandmother falls into a different category.  She is not the subject of any direct allegations, in the Affidavit at least, at this point, certainly of a physical kind and I am satisfied that it would be highly improbable that she and her son would conspire to allow her son to physically abuse the children or even psychologically or verbally abuse the children in circumstances where the matter is before the Court and every action by either parent must necessarily be under scrutiny.

15. To be blunt, if the father is so stupid as to carry out conduct that has been asserted that he has carried in the past over this weekend, in the presence of his mother, then my task as to what happens in the future is very simple indeed and, if that happens, then the father must realise what the consequences will be and, accordingly, in my opinion, it is improbable that the children would be likely to be subjected to any particular abuse over this coming weekend, even if that has occurred in the past and I am far from having come to any conclusion that that is so.

Conclusion

1. For those reasons, therefore, it seems to me that it is an acceptable risk, to put it in a positive term, that the children could spend time with their father over this coming weekend, in the presence of their paternal grandmother, in the absence of their paternal grandfather, and, for excessive caution and given that is apparently not going to generate any difficulties, in the absence of the father's partner, Ms D.

2. The practical orders that I believe it would be appropriate for to me make are, to some extent, as suggested by the father, that E and L would spend time with their father on the Friday evening and I will need to put in a time for doing so; that the father could collect c after the end of the school camp on the Saturday and that the children be free to travel with their father and their paternal grandmother from Canberra to Sydney on the Saturday night and that the children's grandmother will remain with them in the house overnight and return with their father to Canberra on the Sunday morning at a time to be nominated accordingly.

3. I further adjourn the proceedings until 22 October 2009 at 1.00 pm. That will enable the parties to confer about who should be the relevant single expert.  I express no preference between Dr R and Professor N at the present point.  It is a matter that ultimately the parties should agree upon and, if necessary, if they cannot, then I will make a decision.

4. The terms of reference should, in my opinion, should be as submitted by Mr Routh, with the removal of Term 6.6 and also Term 9.  I request that he make available to my Associate in electronic form those documents so we can put them into an order in due course.

5. The parties should also confer about what material is to be made available to whichever expert is selected and, in this regard, I express a preference for existing reports from any of the people that we discussed today being made available.  I have less enthusiasm about the provision to the expert of the affidavits by either of the parties, although I would guided by the collective wisdom of the lawyers involved, in particular by the single expert witness, and, if he remains as part of the proceedings, by Mr Tandy, on behalf of the Chief Executive.

6. I note that the Chief Executive may determine in the course of the next week to intervene in these proceedings and I indicate, as I did before, that, if such an intervention is sought, it will be granted.  I believe that it is appropriate that there should be a family consultant appointed to this matter and I direct that the family consultant will have an opportunity, if possible, to discuss with the children next week some time, the nature of the time that they spent with their father and provide them with such assistance about the proceedings before the Court, the way in which those proceedings will occur and their entitlement as children under the Family Law Act1975 (Cth) to have their views expressed to the Court, but to confirm with them that it is not their responsibility to make decisions which their parents ultimately must make or, if they can make, I will make in their stead.

7. I note that, in adjourning the proceedings for a week, it is not the matter cannot be completed next week, although I suppose it could be if everything went as it might over the weekend.  It is more probable that there will be much deeper issues that will need to be involved and I will make further directions, I indicate, about the sort of Affidavits that might appropriately be filed after the report of the single expert is available.  That will, hopefully, help us to limit the numbers of Affidavits or the additional material that maybe necessary for a finalisation and that finalisation should occur as soon as possible.

8. I will reserve consideration about further time the children spend with their father until the hearing, until after this weekend.

The focus is the best interests of the children, not the perceived rights of the parents

1. I urge both parents to accept that this is a difficult time for the children and one in which tolerance on the part of both parents is required.  This is not about the rights of parents, it is about the rights of the children and, while I am not suggesting for a moment that either of you would seek to put your own so-called rights ahead of the rights of the children, this is a matter in which there is to be an exquisite balance between what is good for the children and what is good for you individually. It is not going to be an easy task for either of you and it is going to require patience and a great deal of love for the children. I hope that both of you have that love and that you love your children more than you hate each other. 

2. Sometimes that is a more difficult task than it seems.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate: 

Date:  6 November 2009