Parer & Taub (No. 2)
[2012] FMCAfam 1250
•19 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PARER & TAUB (No. 2) | [2012] FMCAfam 1250 |
| FAMILY LAW – Parenting – delineation of parental responsibility – spend time with – meaningful relationship – transgender parent. FAMILY LAW – Costs – application by party – application by Independent Children’s Lawyer – application dismissed. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65L, 68LA, 69ZV, 117 Federal Magistrates Court Act 1999, s.42 Evidence Act 1995, ss.76, 77, 78, 79, 135, 136 Births, Deaths and Marriages Registration Act 1995 (NSW), ss.32I, 32J Anti-Discrimination Act 1977 (NSW), Part 3A International Convention on the Rights of the Child |
| Re: K [1994] FLC 92-461 Jones v Dunkel (1959) 101 CLR 298 Goode & Goode (2006) FLC 93-286 Marvel & Marvel (No.2) [2010] FamCAFC 101 MRR & GR [2010] HCA 4 Johnson & Page [2007] FamCA 1235 B and B (1993) FLC 92-357 Cachia v Hanes [1994] HCA 14 B & P [2000] FamCA 392 Oscar & Traynor [2008] FamCAFC 158 London Scottish Benefits Society v Chorley (1984) 13 QBD 872 Lawrence v Nikolaidis [2003] NSWCA 129 Bennett (1991) FLC 92-191) Dean & Dean (unreported) P and P and Legal Aid Commission of New South Wales Separate Representative and Human Rights and Equal Opportunity Commission Intervener [1995] FamCA 44 |
| Applicant: | MS PARER |
| Respondent: | MS TAUB |
| File Number: | (P)PAC 2389 of 2009 |
| Judgment of: | Harman FM |
| Hearing dates: | 21 and 22 March 2012; 10,11,12 and 13 September 2012; 31 October 2012; 1 and 9 November 2012 |
| Date of Last Submission: | 9 November 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 19 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sperling |
| Solicitors for the Applicant: | Tiyce & Partners Lawyers |
| Respondent: | Self Represented |
| Counsel for the Independent Children’s Lawyer: | Ms Snelling |
| Solicitors for the Independent Children’s Lawyer: | Stephen W. Bell & Associates |
ORDERS
That all prior parenting orders with respect to the children and young people:
X born (omitted) 1995;
Y born (omitted) 2000; and,
Z born (omitted) 2004;
shall be and are hereby discharged.
That Ms Taub have sole parental responsibility for Y and Z as regards decisions relating to their education and health and subject to the following:
(a)Ms Taub shall do all things, sign all documents and give all consents and authorities necessary to ensure that Ms Parer’s details (including but not limited to her name and contact details) are provided to any school attended by Y and/or Z and recorded with any school as both a parent and emergency contact person;
(b)Ms Taub shall do all things within her power to ensure that Ms Parer is able to obtain directly from any school attended by Y and/or Z any reports, newsletters, notification of events or other information as Ms Parer may desire; and
(c)Ms Taub shall do all things, sign all documents and give all consents and authorities necessary to ensure that Ms Parer’s details are provided to any medical practitioner with whom Y and/or Z are attending and including specifically any counsellor, psychologist or psychiatrist and so as to enable Ms Parer to consult and be consulted with respect to same and, should the counsellor, psychologist or psychiatrist consider it useful or desirable, to involve and include Ms Parer in appointments or service delivery.
Ms Parer and Ms Taub shall have equal shared parental responsibility for Y and Z other than for matters dealt with above.
Ms Parer and Ms Taub shall each keep the other advised at all times of their residential address, email address and telephone contact number and provided, however, that save for the purpose of complying with these orders that such information as is provided by each to the other shall not be disclosed by either to any other person nor shall either attend at, approach or cause any other person to attend at or approach the other’s residence.
Ms Parer and Ms Taub shall advise the other immediately of any significant illness or hospitalisation relating to Y and/or Z whilst in their respective care and such notice shall be given contemporaneous with the event and shall include sufficient information and authority to enable both Ms Parer and Ms Taub to be fully consulted, advised and involved in any treatment decisions.
Y and Z shall live with their mother, Ms Taub.
Y shall spend time with her father, Ms Parer, at such times and in such fashion as Y may desire and provided that should Y express to her mother, Ms Taub, any desire to spend time with or communicate with the father then Ms Taub shall assist Y in any way she is able to allow that time or communication to occur.
Z shall spend time with her father, Ms Parer:
(a)For a period of six months from the date hereof and thereafter and until such time as Ms Parer obtains and confirms with Ms Taub that she has obtained suitable accommodation (as defined hereafter) each alternate Sunday from 10.00am until 5.00pm or such period as can be accommodated on the basis of available changeover slots with the (omitted) Contact Service (including such time to occur on Saturday instead of Sunday if that is more practicable to the (omitted) Contact Service);
(b)Following the above and upon Ms Parer obtaining suitable accommodation, each alternate weekend from 10.000am Saturday until 5.00pm Sunday (or commencing Saturday and concluding Sunday at such times as can be accommodated by the (omitted) Contact Service);
(c)Such further and/or other times as Ms Taub and Ms Parer agree from time to time;
(d)All changeovers shall occur through the (omitted) Contact Service and provided that should service be withdrawn then changeovers shall occur within the western ticket concourse, (omitted) Railway Station.
For the purpose of these orders, suitable accommodation shall be taken to be available to Ms Parer when:
(a)Ms Parer obtains accommodation of which she is the tenant or a co-tenant upon a lease or occupancy agreement;
(b)That accommodation includes a separate bed for Z;
(c)Ms Parer has taken occupation of that accommodation and advised the address of same to Ms Taub.
Ms Parer shall be entitled to telephone and speak with Y and Z at all reasonable times and with reasonable frequency including but not limited to each Wednesday between 5.30pm and 6.00pm and with respect to same:
(a)Ms Taub shall advise Ms Parer of a telephone number upon which each of Y and Z can be contacted;
(b)Y and Z shall be allowed to speak with their father on any occasion Ms Parer shall telephone them and shall be allowed to speak with privacy (and including by the telephone service that Y and/or Z are using not being on speaker) and without interruption or distraction.
Ms Parer and Ms Taub shall attend, and Ms Taub shall do all things necessary and within her power to cause X, Y and Z to attend, upon a Family Consultant at this Court at 9.00am on 20 November 2012 and for the purpose of the Family Consultant:
(a)Explaining to X, Y and Z the orders made;
(b)Explaining to Y and X that Ms Parer had, by the orders she had sought in these proceedings, proposed that they spend time with her (their father) in accordance with their views and wishes and not otherwise;
(c)Explaining the reasons for Judgment delivered today to each of them in such terms and in such detail (including at the discretion of the Family Consultant allowing X and/or Y to read or be appraised of the reasons for Judgment accompanying these orders or portions thereof).
Pursuant to s.65L of the Family Law Act, that the above Family Consultant supervise compliance with these orders for a period of nine months from today’s date and during that period arrange such appointments (of their own volition or at the request of either party) as they consider necessary and appropriate for the parties or either of them or for Y and Z or either of them and make such recommendations and referrals for the parties or for Y and/or Z as they consider appropriate.
Ms Taub shall request that the counselling service presently engaged and dealing with Y also meet with Z and for the purpose of assisting Z in any fashion which appears desirable or of benefit to her and subject to the counselling service considering such service appropriate to ensure Z attends at such times, dates and places as necessary to engage with that service.
Leave is granted to the Independent Children’s Lawyer to seek an order for contribution to the costs of the Independent Children’s Lawyer and as against each parent.
The Independent Children’s Lawyer’s application for costs is dismissed.
Ms Taub’s application for costs is dismissed.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
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.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
IT IS NOTED that publication of this judgment under the pseudonym Parer & Taub (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2389 of 2009
| MS PARER |
Applicant
And
| MS TAUB |
Respondent
REASONS FOR JUDGMENT
At the commencement of the hearing of these proceedings I had commented to the parties and, in particular, to the Applicant, Ms Parer, that I appreciated and acknowledged that the decision that she had faced in transitioning from male to female gender had been difficult and brave.
Having now heard nine days of evidence and submissions I am conscious that I may have been mistaken in that acknowledgement. The decision made by Ms Parer has not been brave. It has been the only decision available to her to enable her to live her life authentically as the person that she is.
With respect to the above, I note the sage advice of Lord Chesterfield to his son in 1774 (long before issues of transgender were spoken of) that “no man is ridiculous for being what he really is, but for affecting to be what he is not”. The above quote is not intended to suggest or rely upon the specific gender denoted therein.
As has been observed by one of two report writers, Dr H “Ms Parer’s gender transition is foremost among the many issues having significant bearing on this dispute” (paragraph 5 of Dr H’s report dated 3 January 2012).
The proceedings
These proceedings relate to competing parenting applications regarding three young women, namely:
a)X born (omitted) 1995 (accordingly aged 17 years and six months;
b)Y born (omitted) 2000 (presently aged 12 years and eight months); and
c)Z born (omitted) 2004 (presently aged 7 years and eleven months).
The parties to the proceedings are the children’s parents.
The Applicant in the proceedings is the children’s father, Ms Parer. Connected with the issue identified above and reflective of the length of time that these proceedings have been before the Court, the children’s father was previously known by the name, Mr Parer. However, Ms Parer has long ago abandoned any affectation of living as a male and has moved to and taken active steps to live, as and by her true identity and gender, as a woman.
The Respondent in the proceedings is the children’s mother, Ms Taub.
I propose throughout these reasons to refer to the Applicant, Ms Parer, by her name as well as, where appropriate, by her generic title as the children’s father. I had sought to clearly establish at the outset of these proceedings and prior to the commencement of the hearing, that such reference was appropriate and acceptable and did not create any distress or cause concern for any person. Ms Parer has, from the time that the proceedings came into my docket, proudly acknowledged that she is the children’s father and, clearly, Ms Parer takes as much joy in that role as Ms Taub takes (deservedly so and for which she should be given significant praise and acknowledgment) as the children’s mother.
These proceedings have taken some significant time to reach final determination. That has been a matter of significant concern to each of these parents and justly so.
The first proceedings between the parties were commenced by Application filed by Ms Parer on 25 May 2009. Those proceedings were concluded by orders made by consent on 24 August 2009. A further Application was filed by Ms Parer (and which commenced these proceedings) on 1 October 2010. Thus the total litigation between the parties has taken a period of three and a half years to reach this conclusion.
Prior to commencing these proceedings the parents had entered into orders by consent with respect to both property adjustment and parenting. Those orders were made in the Local Court at Penrith on 23 December 2005 and provided, with respect to parenting:
a)That the parents would have equal shared parental responsibility for all three children;
b)That all three children would live with their mother; and
c)That the children would spend time with their father “at such times and at such places as are agreed between the parties”.
The proceedings commenced by Ms Parer by her Application filed 25 May 2009 sought orders as follows:
a)That the (then current orders of the Local Court) be discharged;
b)That the parties attend family mediation (this would never appear to have occurred);
c)That Ms Parer spend time with all three children:
i)From Wednesday evening until Thursday morning in each week;
ii)A period each alternate weekend from Friday evening until Sunday evening;
iii)One half of each school holiday period.
The Response filed by Ms Taub (22 July 2009) did not raise any significant issue as regards the parenting orders sought by Ms Parer. Ms Taub proposed:
a)That the parents have equal shared parental responsibility;
b)That the three children live with their mother;
c)That X spend time with her father “...at such places and at such times as are agreed in consultation with the mother and father and in accordance with that child’s wishes”;
d)That Y and Z spend time with their father:
i)In each week from after school Wednesday until before school Thursday;
ii)From Friday afternoon until Sunday afternoon each alternate weekend; and
iii)Block periods of one half of school holidays.
Reflective of the relative agreement between the parents those proceedings were concluded by orders made on24 August 2009 which orders made provision for Y and Z to spend time with their father, Ms Parer, each Wednesday to Thursday morning and each alternate weekend.
A fresh Application was filed by Ms Parer on 1 October 2010 which sought orders to the following effect:
a)That the parents have equal shared parental responsibility for all three children;
b)That the three children live with their mother;
c)That Y and Z spend time with their father:
i)In each week from after school Wednesday until before school Thursday;
ii)From Friday afternoon until Sunday afternoon each alternate weekend;
iii)Periods during school holidays; and
iv)Special events.
The Response then filed on 25 October 2012 by Ms Taub again sought relief not dramatically dissimilar to that proposed by Ms Parer and being, in effect:
a)That the parents have equal shared parental responsibility;
b)That all three children live with their mother;
c)That Y and Z spend time with their father:
i)In each week from after school Wednesday until before school Thursday (with slightly different start and finish times);
ii)From Friday afternoon until Sunday afternoon each alternate weekend; and
iii)Block periods of one half of school holidays and other special events.
At that point and based upon the relief sought by each parent, the parties were in dispute regarding matters such as whether periods of time would commence with the children’s collection from school (and day care) by their father or whether they would be collected at some later time.
An Amended Initiating Application was filed by Ms Parer on 18 March 2011. This Application did not substantially vary relief sought at least insofar as it dealt with Y and Z. Orders sought by that Application were, in effect:
a)That the parties have equal shared parental responsibility for all three children;
b)That X spend time with her father in accordance with her wishes and as arranged between she and her father;
c)That Y and Z spend time with their father:
i)From 5.00pm until 8.00pm each alternate Wednesday;
ii)Each alternate weekend from Friday evening until Sunday evening;
iii)One half of each school holiday period;
iv)On other special occasions.
Since the above Applications and Responses neither party has filed a further Amended Application or Amended Response. Thus the orders proposed by each at trial would, on the face of those documents, appear to be remarkably similar.
However, during the course of the preparation of a family report by Dr H and subsequently a Part 15 report by Dr B, it is clear that the parties’ positions have departed substantially from that set out in the documents filed by them.
I am satisfied that neither party is denied due process by reference to the variation of relief sought by the other parent nor as to the case that they are called upon to answer. Each has made clear, through each of the reports prepared and their material as filed, the position which they advance. Further, each of the parties (and the Independent Children’s Lawyer) have tendered Minutes of Order at the commencement of, or at other times during, the trial of the proceedings which clearly set out that which is sought by them. Indeed, the orders proposed by Ms Parer were varied at the conclusion of the evidence and during submissions in closure of her case and without objection.
The parties’ proposals
The orders proposed at trial by Ms Parer were set out in a Minute of Order tendered (together with a case outline document) at the resumption of the hearing in September 2012. Two earlier days of hearing had occurred which I will touch upon shortly.
The Minute of Proposed Order tendered 10 September 2012 sought an extensive array of orders relating to parental responsibility and delineation thereof, as well as orders with respect to the child Z’s time with Ms Parer. Orders were sought as to X and Y’s time with Ms Parer but without any specific provision for or prescription of face to face time. Such orders can be paraphrased as orders which would leave the decision as to time arrangements in the hands of X and Y respectively.
The majority of orders proposed by Ms Parer relate to issue of parental responsibility and for reasons which will become apparent throughout this Judgment.
The orders proposed by Ms Parer as regards her face to face time with Z had envisioned alternate weekend time from Friday to Sunday together with a period at Christmas. During closing submissions, and as a consequence of accommodation difficulties which have arisen for Ms Parer whilst the matter has been before the Court for its protracted hearing, this proposal was varied and so as to seek a continuation of day (non-overnight) time until such time as Ms Parer is able to secure “adequate and appropriate accommodation” and only upon this occurring would overnight time then be suggested to commence.
A Minute of Orders sought by Ms Taub was tendered during the trial and specifically on 31 October 2012. That Minute became an exhibit in the proceedings (Exhibit M2).
Ms Taub proposes that she would have sole parental responsibility for all three children who would otherwise live with her pursuant to orders of the Court.
Ms Taub proposes, as regards the children’s relationship with their father, that X and Y be at liberty to see their father in accordance with their wishes and that Z spend time with her father on a supervised basis and each third weekend. In the event that the Court was not inclined to make an order for ongoing, perpetual supervision, then Ms Taub’s proposal was for time to then occur from 9.15am to 3.30pm each third Saturday and for changeovers to occur through the (omitted) Contact Centre. This is in accordance with that proposed by the Independent Children’s Lawyer.
In closing submissions Ms Taub had otherwise indicated that she would not oppose the balance of orders sought by the Independent Children’s Lawyer.
A Minute of Orders sought by the Independent Children’s Lawyer was tendered on the last day of trial, 9 November 2012, and marked as Exhibit ICL6. That Minute proposes that all three children would live with their mother who would have sole parental responsibility for them. In accordance with that proposed by both Ms Parer and Ms Taub, it was proposed by the Independent Children’s Lawyer that X and Y would spend time with their father at such times as they desired.
An order is proposed by the Independent Children’s Lawyer that Z spend time with her father each third Saturday from 9.15am until 3.30pm and, in common with and supportive of Ms Taub’s position, with changeovers to occur through the (omitted) Contact Centre. Changeovers have, to date, occurred through the (omitted) Contact Service at (omitted). An array of other orders, principally relating to parental responsibility and delineation thereof, are sought by the Independent Children’s Lawyer.
Material read and considered
The case outlines filed by Ms Parer’s legal representative and the Independent Children’s Lawyer identified Affidavit material relied upon and to be read. However, as cross examination proceeded, other filed documents, beyond those identified in the case outlines, have been referred to and have thus been read and considered on the basis of and arising from their identification.
For the sake of clarity I propose to set out the material that has been read and considered in the proceedings as well as a discussion of that which has flowed through cross examination.
The material that I heave read and considered in Ms Parer’s case has comprised:
a)Each of the Application and Amended Applications identified above;
b)The Affidavit of Ms Parer sworn 30 September 2010 and filed 1 October 2010;
c)The Affidavit of Ms Parer sworn 16 March 2011 and filed 18 March 2011;
d)The Affidavit of Ms Parer sworn 13 May 2011 and filed 17 May 2011;
e)The Affidavit of Ms Parer sworn 25 July 2011 and filed 3 August 2011;
f)The Affidavit of Ms Parer sworn 19 March 2012 and filed 20 March 2012;
g)The Affidavit of Ms Parer sworn 23 August 2012 and filed the same date.
In addition to the above Affidavit material a witness, Mr K, was also called and, with leave, gave oral evidence and was then cross examined.
In addition to the above evidence, a piece of correspondence from Ms Parer’s attorney’s to Ms Taub was tendered and marked Exhibit F1.
In Ms Taub’s case I have read and considered each of the following:
a)The Responses identified above;
b)The Affidavit of Ms Taub sworn and filed 22 July 2009;
c)The Affidavit of Ms Taub sworn and filed 25 October 2010;
d)The Affidavit of Ms Taub sworn 28 February 2011 and filed 1 March 2011;
e)The Affidavit of Ms Taub sworn and filed 4 May 2011;
f)The Affidavit of Ms Taub sworn 23 June 2011 and filed 24 June 2011;
g)The Affidavit of Ms Taub sworn 3 August 2011 and filed 4 August 2011;
h)The Affidavit of Ms Taub sworn 11 August 2011 (the date of filing which is unclear);
i)The Affidavit of Ms Taub sworn 13 March 2012 and filed 14 March 2012;
j)The Affidavit of Ms Taub sworn 14 August 2012 and filed 24 August 2012;
k)The Affidavit of Ms Taub sworn 28 August 2012 and filed 29 August 2012;
l)The Affidavit of Ms Taub sworn and filed 18 October 2012;
m)The Affidavit of Ms H sworn 13 March 2012 and filed 14 March 2012.
At the commencement of evidence on 10 September 2012, Ms Taub indicated that whilst she had filed two Affidavits by a Ms H that she was not in a position to rely upon them as Ms H was no longer prepared to attend Court. However, at the conclusion of Ms Taub’s cross examination on 1 November 2012 she indicated her desire and intention to call Ms H who was then available (and had, in fact, been present at Court for that day and the preceding day).
Some argument occurred as to the introduction of that evidence at a late point in the proceedings. However, as Ms Taub’s case had not been closed and on the basis that Affidavit material had been filed and served and as the deponent was now available, leave was granted for Ms H to be called.
However, limitations were imposed with respect to same and particularly confining Ms H’s evidence to that which was addressed in her Affidavits as filed and served. This arose, as was discussed with the parties and the Independent Children’s Lawyer and after they were given an opportunity to make submissions, on the basis of a desire to allow due process to Ms Taub who has, throughout the hearing, been self represented as well as the desire to give life and meaning to section 42 of the Federal Magistrates Court Act 1999 which calls upon the Court to conduct proceedings with informality.
Set against this, however, was a concern to ensure the proceedings were not further protracted, that due process was not, in any way, denied to Ms Parer by the later introduction of evidence and to ensure that some restriction (by reference to s.136 of the Evidence Act) was imposed upon evidence to achieve the above ends.
Ultimately, when the matter then returned for the final day of evidence (9 November 2012) leave was sought by Ms Taub to re-open her case and to adduce further evidence as well as to allow Ms H to do so particularly regarding events which were suggested to have occurred at the Court on 31 October 2012 and 1 November 2012 when Ms H was present as were Ms Taub and Ms Parer (and Mr K).
After hearing submissions from both parties and the Independent Children’s Lawyer, leave to adduce further evidence was refused particularly upon the basis of sections 135 and 136 of the Evidence Act. It was put in submissions on behalf of Ms Parer that to allow such evidence would, in all probability, result in the matter not concluding (on what was, in effect, the ninth day of the case). This was so as if evidence were adduced by Ms Taub and/or Ms H regarding suggested incidents that had occurred in the Court precincts on those days, that Ms Parer would need to be recalled and further witnesses (including Court security staff) might potentially be called to address events as suggested to have occurred by one or both of the parties.
On the basis that evidence adduced with respect to events on those days would and could only go to the antipathy between the parents (as to which, and after eight days of evidence, the Court had more than abundant evidence) I was not satisfied, given the potential for the proceedings to then be further adjourned on a part heard basis (and in all probability not then able to then be accommodated without displacing other matters for a period of seven months) and the cost that this would incur (not only financial but emotional), that such leave should be granted. Thus I directed that the matter should proceed to finality based on the evidence already filed in written form (and subject to Ms H’s cross examination).
Ms H was then called and ultimately only relied upon the one Affidavit identified above.
In Ms Taub’s case a number of documents were also tendered and marked as exhibits, comprising:
a)Exhibit M1: An Application for Apprehended Domestic Violence Order by Ms Parer against Ms Taub (it being common ground that an order was ultimately made);
b)Exhibit M2: The Minute of Orders proposed by Ms Taub as identified above;
c)Exhibit M3: A number of documents from NSW Police in the nature of COPS events entries relating to and suggested to corroborate versions of events given in Ms Taub’s case;
d)Exhibit M4: Notes from the (omitted) Contact Service.
In the Independent Children’s Lawyer’s case no witnesses were called. However, a number of documents were tendered and marked as exhibits comprising:
a)Exhibit ICL1: An email from Ms B counsellor at Unifam (omitted);
b)Exhibit ICL2: A Minute of Orders proposed by the Independent Children’s Lawyer;
c)Exhibit ICL3: An identified COPS entry from NSW Police;
d)Exhibit ICL4: Notes from the Child and Youth Mental Health Service (regarding the child Y);
e)Exhibit ICL5: Records from Sydney Area Health Service (relating to Ms Parer);
f)Exhibit ICL6: An Amended Minute of Orders proposed.
Also in the proceedings two reports had been prepared comprising:
a)Exhibit A: A report prepared pursuant to s.62G by Dr H. That report, as identified above, is dated 3 January 2012 and was released to the parties by order 13 January 2012;
b)Exhibit B: A Part 15 report prepared by Child, Adult and Family Psychiatrist, Dr B. This report is dated 15 June 2012 and was released to the parties by order 20 June 2012;
c)Exhibit C: A brief addendum report prepared by Dr B following a telephone interview with Ms Taub’s partner, Mr P. This addendum report is dated 25 August 2012 and was released to the parties by order 28 August 2012.
Dr H was not required for cross examination and thus his report is admitted into evidence without challenge.
Dr B was required for cross examination and so attended. Dr B was cross examined at some length and was most generous in making himself available for extended sitting hours and so that his evidence could be completed on the day that he was called (and thus concluding his evidence after 6.00pm).
Dr B’s report had been ordered and commissioned as a consequence of events arising from the first scheduled hearing commencing 21 March 2012 and following the tender of correspondence (Exhibit ICL1).
The proceedings had been initially listed for a three-day hearing commencing 21 March 2012. When the matter was called on that day and the hearing thus commenced, tenders were made by the Independent Children’s Lawyer and issues raised (both arising from the tender and otherwise) suggesting that the child Y, who had been engaged in counselling with a Ms B a counsellor at Unifam (omitted) on an ongoing basis, had experienced a recent disintegration in her mental health. Ms B’s letter (by email) dated 21 March 2012 had indicated:
I would like to confirm that I have seen Y for counselling over a period of time beginning October 2010.
Most recently I saw her March 16th 2012. at this appointment it was apparent to me that Y’s anxiety had increased to a level that it was interfering with her daily functioning and that a referral to (omitted) Hospital, Psychology dept [sic] was appropriate. I advised her Mother at the appointment that my recommendation was that medical intervention coupled with ongoing therapy was indicated.
The hearing was then stood over to the following day, 22 March 2012, to enable further enquiries to be made and for a subpoena to be issued at short notice and forthwith for the production of notes with respect to the second issue raised by the Independent Children’s Lawyer, being a recent nine day admission of Ms Parer to a psychiatric unit at the (omitted) Hospital and which had been suggested to have been an involuntary/forensic admission occasioned following an attempt at self-harm.
The above circumstances (regarding Ms Parer’s admission) were the subject of substantial controversy but, in any event, were issues of some apparent significance and concern in light of the evidence then available.
On 22 March 2012, orders were then made which adjourned the proceedings and with the intention of funding being obtained to retain and commission a Part 15 report.
Thus, the report of Dr B was commissioned and in the above circumstances. Fresh hearing dates (4 days) were fixed once the report was completed and had been released to the parties. At the end of those 4 days Ms Parer’s case was closed with Ms Parer having spent nearly all of those four days in the witness box.
I have made this aspect of the matter clear to ensure that the basis for such use of resources is spelt out within this Judgment. This is particularly so as the evidence which subsequently unfolded would not appear to have been entirely as apprehended in March although:
a)Same is not suggested as a criticism of the Independent Children’s Lawyer or either of the parties nor is it intended to suggest that there was any active or overt attempt to mislead the Court through act or omission; and
b)The commissioning of a second report was not, in any way, precipitated by a perceived deficiency in the report already prepared by Dr H, he being a most eminently qualified and experienced report writer.
The parties evidence and cross examination
Set out hereafter is a chronology of largely non contentious dates and events. That chronology is as follows:
(omitted) 1963
The father, Ms Parer, born (now aged 49 years).
(omitted) 1969
The mother, Ms Taub, born (now aged 43 years).
1993
Parties meet in Drug and Alcohol Rehabilitation.
September 1993
Parents commence cohabitation.
(omitted) 1995
X born. Now 17 years 6 months.
(omitted) 2000
Y born. Now aged 12 years 8 months.
(omitted) 2001
Parents marry.
(omitted) 2004
Z born. Now aged 7 years 11 months.
22 October 2005
Parents separate.
23 December 2005
Orders made by consent at the Local Court at Penrith with respect to property settlement and parenting orders. Parenting orders made for equal shared parental responsibility, all the children live with their mother and spend time with their father at such times and at such places as are agreed between the parties.
(omitted) 2006
Mother meets and commences relationship with Mr P.
21 September 2006
Child Support Application filed by Ms Parer.
11 December 2006
Divorce granted.
22 January 2007
Child Support Application discontinued.
(omitted) 2008
Child of Ms Taub's relationship with her new partner Mr P born (T).
25 May 2009
The father files an Application with the Federal Magistrates Court.
1 July 2009
First return date of Application. Order made for the appointment of an Independent Children’s Lawyer.
24 August 2009
Orders made providing for Y and Z to spend time with their father each Wednesday to Thursday morning and each alternate weekend.
2010
Ms Parer commences hormone therapy and gender reassignment
May 2010
Children commence attending counselling with Unifam.
October 2010
Mother's family (and thus the three subject children) begin to engage with Brighter Futures.
2 November 2010
Orders varied to provide for time between Y and Z and Ms Parer from 8.00am until 4.00pm Saturday and Sunday of each alternate week (rather than overnight) and suspending mid week time.
January 2011
Y and Z do not attend time with their father and no time occurs from January to May 2011.
28 January 2011
Ms Parer attends (omitted) Public School for the first day of school term (Z and Y are both attending this school at that time).
3 February 2011
All orders for time between Y, Z and their father suspended on an undefended basis.
8 April 2011
Orders made for time each alternate Saturday 9.00am to 1.30pm with changeovers through the (omitted) Contact Service.
7 May 2011
Time occurs between Ms Parer and Y and Z.
(omitted) 2011
Ms Taub and her partner Mr P marry.
12 August 2011
Orders for Y and Z to spend time with Ms Parer each third Saturday 9.00am to 4.00pm with changeovers through the (omitted) Contact Service.
24 December 2011
All three children spend time with Ms Parer. X is given condoms. Y (for whatever reason) is distressed during this time and has not spent time with her father since.
13 January 2012
Family Report of Dr H released.
February 2011
Ms Parer spends nine days as an in patient at (omitted) Clinic (omitted) Hospital (voluntary/non forensic admission).
17 February 2011
Trial dates (21, 22 and 23 March 2012) fixed.
21 and 22 March 2012
Hearing commences but adjourned from day one and on the application of the Independent Children’s Lawyer to allow subpoena to be issued (after disclosure of admissions to hospital by Ms Parer in February 2012 and the child Y having been referred for psychiatric intervention by the Child and Youth Mental Health unit at (omitted) Hospital) and a Part 15 Report is subsequently ordered.
22 June 2012
Report of Dr B released.
10 to 13 September 2012
Hearing continues
31 October 2012 and 1 November 2012
Further hearing
9 November 2012
Further hearing
Cross Examination
Each of the parties was required for cross examination as were each of the support witnesses (Mr K in Ms Parer’s case and Ms H in Ms Taub’s case). Dr B was also required for cross examination though Dr H was not.
The evidence in the case was ultimately presented over nine days comprising 21 and 22 March 2012, 10 to 13 September 2012, 31 October 2012, 1 November 2012 and 9 November 2012. Submissions were completed on 9 November 2012.
Cross examination did not commence on the first two listed days of trial.
Ms Parer took the witness box on 10 September 2012 and was then cross examined over four days. This was so notwithstanding that the Minute of Orders proposed by Ms Parer and that had been tendered at the commencement of that day suggested that the discernable issues for judicial determination comprised, inter alia:
a)Whether an order would be made for equal shared or sole parental responsibility;
b)Whether Ms Parer’s time with Z would occur each second or third weekend;
c)Whether Ms Parer’s time with Z would be supervised or unsupervised;
d)Whether Ms Parer’s time with Z would include (at any time) overnight time or be limited to day periods only.
A significant number of issues were otherwise pursued in cross examination of Ms Parer and relating to past history. Those issues, to the extent that they related to X and/or Y, were largely of tangential or peripheral relevance to future time arrangements with Z (although not irrelevant) and/or related to the past exercise of parental responsibility and decision making.
I do not propose to canvas each and every factual issue raised in the proceedings. The parties and the Independent Children’s Lawyer have more than adequately attended to that through their material and extensive cross examination.
What is somewhat extraordinary from the matters set out above and, in particular, the chronology related above is the somewhat litigious path that the matter has taken since shortly after filing of the present Application.
It is to be remembered that when the proceedings were commenced by Ms Parer, she had initially sought orders whereby all three children would live with their mother and spend time with their father from Wednesday to Thursday each week, each alternate weekend and periods during school holidays and special occasions.
At the time Ms Taub had filed her Response and Affidavit in support in the first proceedings she had made clear, at paragraph 8 of her Affidavit (22 July 2009):
I am happy for X, Y and Z to see Mr Parer [as Ms Parer then was] every Wednesday after school until the following Thursday morning. I have commitments at home that make it difficult for me to pick up the children from school, or pre school and then take them to meet Mr Parer at McDonalds in (omitted). It is much more practical for Mr Parer to pick up the children straight after school and keep them with him until he takes them back to (omitted) Public School the following morning.
The Application and Response filed by each of the parties made clear that they were in broad and general agreement as to the time arrangements that would pertain to the children and their relationship with their father. The parties were at odds about minor variance to those otherwise agreed arrangements such as whether the children would be collected from school at 3.00pm or delivered to the father (or, as would appear to have occurred for a period of time, the children making their own way to the fathers home) and time commencing at 5.15pm.
Notwithstanding the apparent limited issues in the proceedings:
a)The parties have never attended Family Dispute Resolution or been ordered to do so (and leaving aside the determination of suitability of Family Dispute Resolution by an Family Dispute Resolution Practitioner);
b)The parties have never attended Family Counselling or been ordered to do so (though each (and the children) have attended a number of non-confidential services);
c)An Independent Children’s Lawyer was appointed on the first return date;
d)Communication between the parents (and thus the children’s time and relationship with their father) has deteriorated and diminished as time has gone by and over the 36 months since the matter first came before this Court.
Perhaps the seeds of disputation were sown by Ms Taub’s initial Affidavit (filed 22 July 2009) at paragraph 9 thereof where Ms Taub had apprehended the gathering storm clouds of dispute and had deposed:
It has not been easy to always get X to go and see Mr Parer. There have been times when X has run away from Mr Parer whiles she was staying with him…I will continue to encourage her to go, but I don’t want to be in a position where I would break a court order if she does not go to spend time with her father. On occasions, X has said to me, “I don’t want to go to dad’s. I don’t like it that he is in a homosexual relationship. I don’t like that”.
Ms Taub continued on to give evidence that X was booked in to see a psychologist on 25 July 2009 as well as raising concerns as to the care provided to and for the children by their father.
It is also to be noted that, whilst the parties’ Applications and Responses as presently before the Court (subject to amendment made through the Minutes they have each tendered at hearing) do not suggest a significant dispute this belies the reality of circumstances.
One of the few agreed facts in these proceedings (as is regrettably increasingly common in proceedings before the Court) is that communication between these parents is beyond poor. Whether as a function of this or otherwise, the parties had, by the time that Dr H undertook appointments on 12 December 2011, drawn battle lines significantly more egregious than those which their Application and Response and the orders proposed therein suggested.
Dr H had opened his report with the following (at paragraphs 3 and 4):
Ms Parer applied for equal shared parental responsibly for the children. She originally sought orders for the children to live with their mother and spend time with her every Wednesday PM to Thursday AM, on alternate weekends from Friday PM to Sunday PM, and for half school holidays…Ms Parer indicated that she now wanted Y and Z to live with her and spend eight hours every three weeks with their mother…
Ms Taub responded to Ms Parer’s initial application by proposing that the parents have equal shared parental responsibly for the children. She sought orders for the children to spend time with their father every Wednesday PM to Thursday AM, on alternate weekends from Friday PM to Monday AM, and for half the school holidays, with changeover to occur at the children’s schools. In her application in a case, Ms Taub sought sole parental responsibility for the children and for their time with their father to be suspended or to occur under supervision. At her appointment, she indicated that she still wanted sole parental responsibility for the children and for them to spend no time with their father.
Based in part upon that reported by Dr H, I am satisfied, as indicated above, there is no absence of due process to either parent by the orders which are, by the close of evidence, proposed by them.
What is clear from Dr H’s report is that matters had deteriorated to such a significant extent between these parents by the time that they met with him, that these parents were diametrically opposed in their views as to the orders which would best meet their children’s needs in the future.
The other matter that is clear and must be observed regarding Ms Taub’s evidence in her Affidavit of 22 July 2009 is that, at that point, Ms Parer had not yet begun her transition to her accepted gender. Ms Parer was at that time still presenting outwardly as male and living in a relationship with another male. I need not comment upon such matters further as they are of historical context to the proceedings only, but that development and its disclosure to Ms Taub and the children clearly marked (not necessarily of itself) the point in time when things began to go badly wrong as between these parents.
By the time of the second Affidavit relied upon by Ms Taub in these proceedings (sworn 25 October 2010), Ms Taub was suggesting that (paragraph 3):
The father (applicant) started breaching the standing family court order, in around July/early August. At around the same time, applicant disclosed to me his decision to transgender.
From this period onwards, and whether as a consequence of anything referred to in the above passages or otherwise, arrangements generally with respect to the children’s relationship with Ms Parer have deteriorated.
Also at around this time Y, together with her sisters X and Z, commenced to attend appointments through Unifam (omitted). The parties are (perhaps unusually) agreed with respect to this issue.
The counselling through Unifam was instigated and initially arranged by Ms Parer and for the purpose of the children receiving some support and assistance in dealing with issues relating to Ms Parer’s transition. However, some issue arose (and it is probably not helpful to determine that controversy) between Ms Parer and the counsellor engaged and thus, whilst the children continued to attend for some time (with Ms Taub), Ms Parer had no further engagement with same.
Also at around this time and as a consequence of difficulties within Ms Taub’s household she, her partner, Mr P, his two children of a previous relationship (who live within the household whether full time or otherwise), and these three children began to engage with a counsellor through Wesley Mission, (omitted), and as part of the Brighter Futures program. This second counselling service would appear to have arisen as a consequence of significant difficulties in the two families blending together, as well as at least one incident of family violence which occurred in Ms Taub’s household and as a consequence of actions by Mr P towards Ms Taub, and to which, from the material tendered, Y at least has been directly exposed.
Also at about this time the list of complaints and concerns raised by Ms Taub with respect to the children and their relationship with their father began to develop.
By her Affidavit sworn 11 August 2011, Ms Taub raised concerns (paragraph 14) that:
The children have told me that the father has brought them into contact with other transgender persons where he now lives. I believe it is inappropriate for the children to have contact with transgender persons.
Further, Ms Taub complained (in the same paragraph) that the children had been taken by their father to a family fun day as part of the annual Gay and Lesbian Mardi Gras Festival, same having occurred on 21 February 2010. As proof of this and of her concerns with respect to same, Ms Taub annexed an extract from the (omitted) (erroneously described by Ms Taub in her evidence as “an adult magazine”) depicting Ms Parer with Y and Z posing for a photograph which was then published along with a number of other photographs from that day. Principal amongst the concerns expressed by Ms Taub was the inclusion, amongst these other photographs, of three men engaged in a somewhat acrobatic display using a vertical pole (described by Ms Taub as “pole dancing”) and two men kissing.
The evidence of Ms Taub, as to this concern, concluded (at paragraph 16):
The children should not spend overnight time with their father. I will not know where they are staying. I do not know the condition of the premises where they are staying or its suitability for the children to stay there [Ms Parer being clear in her evidence that at this point she had moved to a “safe house” provided for her use the Gender Centre, (omitted)]. I do not know who they may come into contact with. The father has said he is teased and made fun of and taunted when he is in public. He has said he fears for his safety and for the safety of the children when they are in public. The father chose to transgender. The children however are young and vulnerable. It is my obligation to protect my children especially from aspects of life and ways of their father that will damage them, perhaps in ways I do not yet know.
The children, particularly Y, are also suggested, at this point, to be beginning to express concerns as to their father’s transition as well general life concerns raised by Ms Taub regarding Ms Parer’s suggested emotional, psychological and psychiatric health.
The Affidavit concludes with:
If they see him, it is inappropriate and unsafe for my children to be with their father on an unsupervised basis.
By Ms Taub’s trial Affidavit (sworn 13 March 2012) these concerns had crystallised under the heading (paragraph 11) “My reasons for supervised contact are as follows”.
These reasons are then enumerated as being:
a)Ms Parer being suggested to have failed to attend for scheduled visits;
b)It being suggested that X has been assaulted by Ms Parer whilst having visited at a prior residence of Ms Parer at (omitted), (approximately a year prior to the Affidavit);
c)Ms Parer being subjected to regular assaults and taunts in public and thus the children being unsafe if in Ms Parer’s presence;
d)All three children being suggested to be “…now refusing to make contact with the father on scheduled weekends. Y has stated that she feels scared and uncomfortable in her father’s residence or out in public”.
e)Ms Parer having attended at Z’s school on her first day at school, 28 January 2011, and it being suggested that this caused her concern and embarrassment (although that was the subject of evidence by Ms Parer and Mr K contrary to that of Ms Taub’s ); and
f)“Y…has suffered extreme anxiety causing frequent urination when visiting her father. This does not occur at home or at school or other occasions”. This issue was, again, subject of significant controversy in the evidence.
Further concerns were then enumerated in both this and subsequent Affidavits to include matter such as:
a)Suggested inappropriate matters being posted on Ms Parer's Facebook page (Ms Parer’s evidence being that the page has privacy settings which would preclude anyone accessing it other than through surreptitious means);
b)Ms Parer advertising for clients as a sex worker and/or engaging in such work;
c)Ms Parer allowing the children to view inappropriate films including “The (omitted) Show” and a film described by Ms Taub as “Transgender (omitted) ” which the evidence has subsequently suggested and, I am satisfied established, is a film “(omitted)”.
The above film, “(omitted)”, has been a matter of some particular controversy in the proceedings and which I will address specifically as, at the time the criticism was first raised by Ms Taub and thereafter pursued steadfastly to the conclusion of the hearing, Ms Taub has not viewed the film. Attempts had been made to arrange for all involved in the matter to view the film as part of the hearing. The Court’s internet security settings have precluded this from occurring although the parties were provided with sufficient information for them to be able to locate and watch (free of charge) the entire film on YouTube. Ms Taub has declined to do so.
The above concerns as enumerated in Ms Taub’s evidence are not set out as above for any purpose other than to identify the issues which were apparent at the commencement of cross examination. It is not intended, for instance, to seek to be dismissive of those concerns or complaints or to in any way trivialise them or any portion thereof. Their identification in Ms Taub’s material is clear and this has thus assisted both in Ms Parer responding to portions of those allegations (such as occurred in Ms Parer Affidavit sworn 19 March 2012) and allow address of those matters through cross examination.
Ms Parer’s cross examination
Ms Parer was called and sworn in on 10 September 2012. Her cross examination then proceeded until late on 13 September 2012.
Cross examination of Ms Parer commenced with an incident that had occurred on the last weekend (immediately prior to the hearing resuming) when time had been spent between Ms Parer and Z. On this occasion, it would appear that arrangements had been made by Ms Taub (who was working that evening after Z’s return to her care) for Z to be cared for by a friend, described in the evidence as the “Godmother” of the children, Ms H. Ms H was, as indicated above, called as a witness in the proceedings and I will deal with her evidence separately.
Ms H’s evidence makes clear that she and Ms Parer were, at some point, next door neighbours and friends but, as she has stated in her Affidavit (paragraph 9), they are no longer friends.
Ms Parer, upon receiving (presumably from Z) the news that Z would be spending the evening with Ms H, became distressed and distraught. Ms Parer is suggested to have indicated that she would contact the police and take Z to the police to make a statement. More germanely, Ms Parer contacted the (omitted) Contact Service and indicated to staff at that Centre (who relayed same to Ms Taub) that Z would not be returned.
Z was eventually returned that evening. However, this occurred only after significant distress for all (or so it would appear).
Ms Parer’s cross examination, as I have indicated, commenced with this incident. Ms Parer indicated that it had become an issue in her mind on a twofold basis, namely:
a)Z had indicated that she did not wish to go and stay at Ms H’s home; and
b)Ms Parer had some significant concerns with respect to Ms H generally (as to her character, capacity and appropriateness to be minding Z) and more particularly with respect to Ms H’s boyfriend. This concern would appear to have been based around a generalised concern (suggested to be held by Z as well as Ms Parer) as to Z being around or left in the care of adult men and thus and thereby exposed to risk.
As I have already indicated Z was ultimately returned to the mother’s care albeit somewhat later than the interim orders in force provided. This would appear to have had a number of flow on effects (at least based on Ms Taub’s evidence). Not the least of which has been that since Z’s retention or holding back on that occasion and until the weekend immediately prior to the resumed hearing of the matter on 31 October 2012, Z refused to pass to her father’s care when presented at the Contact Centre. Ms Taub suggests that this was as a consequence of an apprehension on Z’s part that she would not be retuned. The cross examination of Ms Parer on that issue perhaps gives some support to that proposition as Ms Parer had suggested that when she had indicated to Z that she would not be going home, that Z “had kicked and screamed initially”.
Ms Parer was otherwise cross examined with respect to communication arising from that incident and more generally. Ms Parer was asked what attempts she had made to speak with Ms Taub. Ms Parer’s frank and candid response was “no we don’t communicate at all”. When it was suggested that Ms Parer might have at least sent a text message a response was provided, again frankly and candidly:
No, because she doesn’t answer. We haven’t communicated for a few years now. We just don’t communicate. In the last two or three years there has been absolutely no communication. We can’t discuss anything. There is nothing we can do to discuss things. It is rather difficult. We have to come to Court to facilitate it [communication] as there are no other means.
It was then put to Ms Parer that overnight time would, on that basis, be difficult as there would be matters to communicate (presumably over and beyond that required for day periods). Ms Parer again, frankly and appropriately, conceded that difficulties would arise. Ms Parer expanded her answer to indicate “It’s probably quite difficult. At the moment she [Ms Taub] does not answer her phone. It would be difficult. I could send her a text but that’s about it”.
The issue as to Y’s anxiety and frequent urination in Ms Parer’s care was put to Ms Parer. Ms Parer conceded that Y, when she had been attending at the Contact Centre (noting that Y has not spent any period of time with Ms Parer since Christmas Eve 2011), that Y had:
Gone frequently whilst at the centre, but when she is with me I haven’t really experienced it any more than usually. In my care in my house she is fine. At changeover times there is frequent urination.
Issues with respect to Y’s anxiety generally were raised, particularly relating to the more recent counselling that Y has been engaged in (and particularly since the referral by Ms B to the (omitted) service as identified in Exhibit ICL 1). The counselling Y is attending at (omitted) House (omitted) had only come to Ms Parer’s attention as a consequence of that matter being raised at Court in March 2012.
The events which played out on Christmas Eve 2011 were also canvassed with Ms Parer. On that occasion it is suggested that Ms Parer had given to X (who had attended for the first time in some little while) a tin containing condoms. It was suggested to Ms Parer that, in retrospect, it would have been better to have provided such items to X and discussed with X issues such as her potentially being sexually active in private and away from her sisters. Ms Parer did not agree with that proposition and suggested that no one else was present (other than herself and the children and Mr K) and “I thought it was appropriate in my role as a responsible parent”.
The appropriateness of actions was very much a theme of Ms Parer’s extensive cross examination. With respect to the events on Christmas Eve (particularly in the context that there is no dispute that X is in a relationship with the son of Ms H although there is controversy as to the extent of that relationship and as to whether it presently or at any time in the past has included a sexual relationship) I am satisfied that such a conversation between a parent and a child would appear entirely appropriate as between a parent and a child.
It was suggested to Ms Parer, and repeated in submissions, that no child would wish to have any discussion with a parent regarding issues of sex or to be aware of, made aware of or consider their parents as sexual beings. There is some merit to that proposition as regards the attitude that might be demonstrated by an adolescent as to a parent’s sexuality. However, Ms Parer was not seeking to discuss her sexuality with X.
I have some sympathy for Ms Parer’s position (particularly as she has worked as a sexual health worker). It is the role and responsibility of a parent to seek to address such matters with their children. Within the limited time periods that were available and particularly X not having attended for face to face time for some little time, the timing of such discussion could, perhaps, have been better chosen. However, I am loathe to criticise a parent of a 16 year old young woman for engaging in such a discussion and I do not find it to be inappropriate.
The next issue raised with Ms Parer was the choice of movies that the children have been allowed to watch and particularly as regards the film “(omitted)”. It was put to Ms Parer that it was a film rated “M” and thus it was a film, of itself, that was inappropriate.
The Australian Classification Board indicates on their website as regards the “M” classification:
Films and computer games classified M (Mature) contain content of a moderate impact and are recommended for teenagers aged 15 years and over.
Children under 15 may legally access this material because it is an advisory category. However, M classified films and computer games may include classifiable elements such as violence and nudity of moderate impact that are not recommended for children under 15 years.
Parents and guardians may need to find out more about the film or computer game’s specific content, before deciding whether the material is suitable for their child [emphasis added].
I am not satisfied, on that basis, that there is a criticism to be made or accepted.
Further, it was put to Ms Parer that the content of the film (dealing with the relationship between a transgender and transitioning parent and their child) was inappropriate and beyond the comprehension of children. It is to be remembered that these are children whose parent is transgender and was transitioning. In response to these suggestions, Ms Parer had indicated and with some force:
I wouldn’t expect you to understand this as you are not in my shoes. Unfortunately that is one of the sad things about this life. They have to learn what it is like. It can be positive too. Yes it is confusing. But they have a parent who is transgender. It is hard for us all.
It was then suggested to Ms Parer that the transgender issues were, indeed, complex and thus too complex to raise with these children. Ms Parer agreed as regards complexity and suggested that they were, in fact, very complex. However, it was then suggested that the children, and in particular Y and Z, were far too young to be shown a film dealing with transgenderism. Ms Parer did not accept this proposition and, I accept, appropriately so.
A dramatic and tasteful representation (indeed an Academy Award-nominated and Golden Globe-winning performance by Ms F portraying a transgender father) of the issues that these children face in their relationship with their father would not, in my mind, create confusion for them and would, conversely, be a potentially useful tool to assist them.
These children have a father who loves them and who has transitioned to her authentic gender as a woman. That is a complex concept for a child or young person (or any person perhaps unless it is their lived experience). But it is not an abstract concept for these children. It is a lived reality and one which, without understanding and acceptance by them (and by others within their family and life) will impact negatively upon their relationship with their father and upon them.
I do not accept that to share a filmatic entertainment with the children which portrays an aspect of their life is inappropriate or forcing the issue on them. The issue is before them and within them as their father is a woman. That is a reality that may, at times, be confronting (and I accept that it has been and is confronting for Ms Taub) but it is the family that these children have. Not talking about it with their father (that is, their transgender parent) will neither aid their understanding and acceptance of that circumstance nor their relationship with their father. Indeed, by reference to s.65DAA(3) one would think that the children’s relationship with their father, Ms Parer, is and would be all the more meaningful from sharing this significant and fundamental part of Ms Parer’s life and life experience.
Dr H has identified in his report (and wisely so) that Ms Parer’s transgender transition is of some fundamental and pivotal importance to the issues that arise in these proceedings, it is to be remembered that it is the lived experience of these children’s father and thus these children.
If criticism were raised of a parent that they had exposed their children to issues (accepted by Ms Parer as “very complex”) for no real reason other than idle curiosity, then criticism might be appropriate and valid (although I struggle with the basis for such criticism even within the hypothetical context).
Using a filmatic, dramatic representation of the very circumstance that both Ms Parer and these children face on a day to day basis (and with and in each other’s company) is, in my mind, far from inappropriate. It is appropriate and responsible. Indeed, to seek to avoid the issue (avoidance being a strategy suggested as likely adopted or to be adopted by one or more of these children) would be disingenuous.
For these children to comprehend, let alone understand, the transition that their father has made is, indeed, very complex. Further, I have complete understanding and empathy for the difficulties that Ms Taub would no doubt have faced in seeking to comprehend and understand such transition (and which I will turn to when discussing her evidence). However, it is a transition that is not undertaken lightly and is intended to place Ms Parer into the position and gender which she genuinely occupies and desires to occupy, that is, as a woman.
The time which has been expended in these proceedings to raise such criticisms on the basis of the children watching a film dramatically depicting the circumstance which their father and they are living was, in my mind, misplaced and unfortunate. This is all the more so, in the case of Ms Taub, who, at the end of some nine days of hearing, has still not viewed the film but continues to advance the criticism.
Ms Parer was cross examined regarding a number of reports she has made to the police wherein welfare checks have been sought to be made at Ms Parer’s instigation. One of these occasions related to the police attending at Ms H’s home (as above) and another related to an event in January 2011. With respect to the latter of these events, it was suggested to Ms Parer that she had no valid basis for any concern to engage the police. Ms Parer responded by indicating:
I had been advised by someone that the police had been attending at their [Ms Taub and her partner’s] home and there was violence in the home. I was concerned.
Clearly, the three occasions (the above event, sending the police to Ms H’s home and the events that arose in September 2012) were misguided and an unnecessary involvement (or threats of involvement) of the police for no good purpose. The tension, distrust and hostility that such events would have created would not appear to have been considered either prior to or following the event. To that end, I am satisfied that there is some real basis for criticism. However, it is far from determinative of the issues in the proceedings and is perhaps better viewed as reflective of the manifest lack of trust and communication between these parents.
Another issue for which Ms Parer was significantly criticised during her cross examination was her adherence to a desire to have the children refer to her by the feminine rather than masculine pronoun, as well as a desire to insist upon same from others (including in the context of the case).
It was put to Ms Parer that it was a very hard thing to expect the children to remember to refer to her always as “she”, particularly when she was the children’s father and they were used to and had experienced Ms Parer as male.
Ms Parer responded to this criticism in words to the following effect:
Yes, but as a parent I have a role to educate my children. I have a duty to tell them what is right and wrong. I’ve done that also to protect them from embarrassment in shopping centres.
I accept the statement of general principle – that it is the role of a parent to educate their child – wholeheartedly.
It was then put to Ms Parer that the children might be made anxious if they were worried that they would “slip up” and refer to their father in masculine rather than feminine terms. Ms Parer did not accept that this was likely to be so.
I am satisfied (and Dr B in particular addressed the issue in his cross examination) that some greater sensitivity and/or leniency might have been extended towards the children in their “misgendering”. However, I also accept that Ms Parer is entirely entitled to expect the dignity and respect of all others (including, in due course, the children but subject to the above) in referring to her in feminine terms that being her gender.
The above is particularly so in light of the provisions of section 32I and 32J of the Births, Deaths and Marriages Registration Act 1995 (NSW), Part 3A of Anti-Discrimination Act 1977 (NSW), and similar legislation which enshrines and reinforces that the gender of a person who has undergone re-assignment or, indeed, (as regards the Anti-Discrimination Act) who has adopted a gender, has a reasonable expectation, in light of that legislation, that they will be referred to in appropriate terms and by their proper gender.
A lengthy line of questioning was put to Ms Parer regarding the difficulties that the children would no doubt apprehend in coming to terms with and processing for themselves (let alone explaining to their peers and weathering their taunts, jibes and ridicule) their father’s gender transition.
Ms Parer was both astute and frank in her observations regarding the issue but also demonstrated, perhaps, some slight rigidity of view which impeded her ability to accept the difficulties the children would have in processing the information which they were required to process as part of her transition. When the issue was raised with Ms Parer she had, as will assume some significance in this Judgment, observed:
My gender reassignment is different to my being a parent. Yesterday you asked me if I thought it was complex. It is complex. But where the complexity arises is with societies reactions, not with me.
Ms Parer did accept (as Dr B had observed as line 748 of his report) that as the children transitioned into puberty and began to confront their own sexuality that it would create even more difficulties for them in processing, understanding and coming to terms with their father’s gender transition. Ms Parer accepted that proposition with “absolutely”. However, the acceptance of difficulty beyond that point was less apparent and, whilst explicable, lent some force to the opinion expressed by Dr B that this represented some degree of self-focus rather than child-focus.
In the same vein, it was put to Ms Parer that Y might find being with her father in public, in light of the concerns raised about public humiliation and/or taunting or even confrontation or assault, a somewhat confronting experience. Ms Parer had responded:
It depends on how others view me. Some might see me as offensive. Many don’t. It’s other peoples reactions.
I am conscious of the long line of decisions that commenced shortly after the enactment of the Family Law Act (and as identified, for instance, by the Full Court in Re: K (1994) FLC 92-461 in paragraph 93(v) thereof) dealing with a balance of public view, perception or stigma of a parent’s sexual preference or, in this case, gender, against the child’s best interests.
I would like to think that the public, let alone the Court, have moved beyond such considerations. However, the evidence would suggest that these children (or at least Y) have had some degree of exposure to less than appropriate responses by peers.
I would like to think, in 2012, that decisions with respect to children’s wellbeing and their relationship with their parents would not be subservient to the ill-informed prejudice that might exude from other members of the community let alone those involved in proceedings. I do not propose to allow those matters to intrude into my decision-making and, to the extent that orders with respect to face to face time are sought with respect to Z only, I am not satisfied that it is, on the evidence available, germane in any event.
Throughout each portion of the cross examination of Ms Parer relating to Y and the significant anxieties that she has been demonstrating for some little time, it was clear that Ms Parer was highly concerned for her daughter’s well-being and remains so notwithstanding that Y has not spent physical time with her father for in excess of 10 months. In this vein, again, it was suggested to Ms Parer that all of the children found it challenging to deal with their father’s transition and the public acceptance of this. Ms Parer again responded:
It goes back to me and what’s embarrassing. Whether it’s my former self or who I am today. I was embarrassed by my parents too.
Whilst I wholeheartedly endorse and accept that which Ms Parer states (that she has no basis to be embarrassed by her accepting and embracing who she truly is and which identity she has embraced through her transition) I am concerned that it is somewhat over-simplistic to compare the comprehension these children are asked to develop as to a parent’s gender transition with simple teenage angst relating to affairs of their parents generally.
When Ms Parer was questioned as to whether there was anything she could do when spending time with Z that might help Z feel more comfortable, Ms Parer’s response was impressive, being:
Live my life as normally as possible. Do the things we do. Go to the park. Do our cooking. Watch television together. I’m in a catch-22. If I try and describe my life to Z, I am criticised. I try and live my life as normally as I can as the woman I am today.
In the final portions of Ms Parer’s cross examination some insight was also gleaned as to the difficulties that are faced by the children. This arose on day three (being cross examination by Ms Taub) and arising from the events which were less than satisfactory on Christmas Eve 2011. Ms Parer indicated with respect to those events (when X had been given condoms and Y had become extremely upset for whatever reason):
Y has complained to me about the torments she gets from Mr P [Ms Taub’s partner] that “your dad’s a poofter”.
I do not take it as accepted by Ms Taub that such statements have been made by her partner to Y or that similar comments have been made by any other person. However, some inkling is given that there may be some basis to that proposition from the balance of Ms Parer’s evidence and further comments to the same effect in her Affidavit material.
Whilst I note that Mr P was engaged in a telephone interview with Dr B (the basis and subject of Dr B’s short supplementary report), Mr P has not otherwise deposed an Affidavit in these proceedings and has not given evidence. Accordingly, and to the extent that any issue is raised with respect to him of the above nature (albeit that such matters come into evidence only as the representations of a child and thus admissible pursuant to s.69ZV of the Family Law Act) a Jones v Dunkel (1959) 101 CLR 298 inference arises, and Ms Parer is entitled to have her evidence accepted.
Throughout her evidence, Ms Parer was emotionally volatile. Criticism of such volatility was made of Ms Parer, particularly in closing submissions, by each of the Independent Children’s Lawyer and Ms Taub. It was suggested by Ms Taub that such presentation suggested a degree of emotional or psychological instability on the part of Ms Parer.
I do not accept that the above propositions flow. Firstly, Ms Taub is not qualified to offer expert opinion (by reference to ss.76 to 79 of the Evidence Act) and thus her lay assessment of the conclusion to be drawn by me from Ms Parer’s presentation is of little or no assistance.
Further, and perhaps more importantly, I am conscious that I must view the presentation of all parties within the context of the proceedings and particularly the fact that, as each party has raised with the report writers and in their Affidavit material, they have endured these proceedings for in excess of three and a half years and this has had a significant impact (financially and emotionally) upon all concerned and members of their extended families and households.
I am conscious, to the extent that Ms Parer was most assuredly emotional during portions of the proceedings and, in particular, her cross examination, that there is some degree of explicability to same. Ms Parer spent nearly four days in the witness box. During her cross examination, Ms Parer was confronted with a number of questions and propositions which would be fundamentally opposed to her self-view and her desire to be accepted (as she has accepted herself) as a woman. This has included suggestions (both in cross examination and in Dr B’s report) that Ms Parer dressing and presenting herself outwardly and openly as a woman in public when with the children is a cause of some concern or embarrassment for the children. However, such actions are doing nothing more than presenting herself as the person she is.
If a proposition was put to a person who, as a part of their demonstration of faith, dressed in a particular fashion that they should forthwith cease to do so whilst in their children’s presence and for the purpose of responding to the actions of others (whether individuals or classes of individuals) it would be considered entirely offensive. I am satisfied Ms Parer is entitled to accept such propositions (although not put quite so openly, blatantly or with such force) as offensive.
Ms Parer’s presentation was most assuredly emotional and volatile (and this would appear to have extended to the presentation during the report interviews of Dr H and Dr B). However, there is some validity to a perception that the spotlight and focus of the proceedings has, at different times, moved from the children’s best interests to an examination of and requirement for Ms Parer to justify her gender transitions. That is not what has occurred, I am satisfied, in either the report processes or the conduct of these proceedings before the Court. However, perception has the great potential to be reality at least in the mind of the individual and thus I am loathe to apportion much criticism and certainly nowhere near as much as I am urged to apportion.
Overall, I found Ms Parer’s evidence credible and, as regards her position, insightful and appropriate. However, as I have indicated above, some criticism would arise (as expressed by Dr B although I do no adopt his opinion with the force with which he expresses it) that Ms Parer has had and might have the potential (explicably and understandably so) to be focussed upon her own experiences and perhaps not always as able to put herself into the shoes of the children and, in particular, Y whom the evidence would appear is the child most effected by events and circumstances.
Mr K’s evidence
Mr K’s evidence I also found credible.
Mr K’s evidence largely went to his observations of the children’s interactions with their father, Ms Parer, when he has been present and, importantly, his attendance with Ms Parer at (omitted) Public School on 28 January 2011.
Ms Parer and Mr K’s evidence is entirely consistent and corroborative. It suggests (and is spoken to in Ms Parer Affidavit of 19 March 2012) that he and Ms Parer attended at the school for the purpose of participating in Z’s first day back.
Ms Parer has given evidence in her above Affidavit that there had been occasions when she has had a less than satisfactory response from school staff when attempting participation in events or attending at the school.
On the occasion in question, Mr K’s evidence suggests that he and Ms Parer arrived, parked behind Ms Taub and alighted from their vehicle. Mr K suggests that Z approached he and Ms Parer, hugged them both, and appeared happy albeit surprised. It is suggested that Z then went to her mother and Ms Taub was observed to bend over and speak with Z. Mr K could not hear what was said.
Z then crossed the road with her mother and a conversation then occurred to the following effect:
Ms Taub: Z does not want you here.
Ms Parer: I’m just here to say hello and wish you the best.
Ms Parer is, for the purpose of these proceedings, in receipt of a grant of Legal Aid.
Ms Taub’s application for costs
Ms Taub’s application for costs is prefaced on a suggestion of “contravention”.
These are proceedings under Part VII of the legislation and in which each parent seeks an order on a substantive basis with respect to future parenting arrangements.
No application has been made or heard as part of these proceedings pursuant to Division 13 of Part VII (dealing with contraventions).
I do not propose to proceed with the application for costs made by Ms Taub on the basis that it is made pursuant to Division 12 as, clearly, on that basis, there not being and there never having been such proceedings, it could not succeed and it would be ill-founded.
I propose to deal with the application for costs by Ms Taub on the basis of a general application of s.117.
The application for costs by the Independent Children’s Lawyer will be dealt with and determined on the same basis.
Section 117(1) provides a general rule that:
each party to proceedings under this Act shall bear his or her own costs.
Section 117(2) reserves a general power to the Court to make an order for costs in favour of a party (or the Independent Children’s Lawyer) subject to being satisfied that there is both:
a)A justifying circumstance; and
b)Such order would be just.
The fact that Ms Parer is in receipt of a grant of Legal Aid does not preclude an order for costs being made against her at least as regards Ms Taub’s application. Any issue that arises with respect to payment of any costs order is a matter as between Ms Parer and the Legal Aid Commission.
Section 117(2A) then sets out a list of prescriptive but non-exhaustive considerations. Based upon a cursory examination of same, the application for costs by Ms Taub must fail. That is particularly so as:
a)Ms Parer is not in paid employment and is solely reliant upon Centrelink based payments for her support and subsistence;
b)Ms Parer is in receipt of a grant of Legal Aid and the potential for such liability to be borne by the Legal Aid Commission (and thus the limited funds available to the Commission to provide representation to parties) would be undesirable;
c)Ms Parer’s conduct with respect to the proceedings (and subject to the suggestion by Ms Taub of a failure to comply with certain substantive orders of a historical nature) is not otherwise criticised;
d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court, is the central matter to Ms Taub’s submission. However, it would appear clear that the matters that are raised by Ms Taub are:
i)Historical (dating to nearly four years ago in one instance);
ii)Are not the subject of specific evidence addressing the suggested non-compliance;
iii)Have not, in any way, inflated the costs involved in the preparation or conduct of the proceedings;
iv)Were not the basis, in whole or in part, upon which these proceedings were commenced by Ms Parer;
e)Neither party has been wholly successful or unsuccessful;
f)The Court is not appraised of any offers in writing made by either party proposing a compromise of proceedings.
Issue also arises as to whether the Court would entertain an application for costs in circumstances wherein Ms Taub has not incurred costs with respect to professional fees.
Ms Taub does not seek to recoup funds expended by the Legal Aid Commission at a time when she was legally represented and legally aided. Ms Taub would have no standing to make that application.
Ms Taub was initially legally aided and thus (save any contribution imposed by the Legal Aid Commission) did not personally incur professional fees. Ms Taub has not, since the termination of her legal aid funding and termination of the retainer of her attorney’s, been legally represented.
The High Court’s decision of Cachia v Hanes [1994] HCA 14 provides that on a taxation of costs on a party-party basis:
there shall be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed.
The Full Court of the Family Court of Australia, quoting Cachia v Hanes, had also indicated in B & P [2000] FamCA 392 that:
as a general principle litigants in person cannot recover such expenses [being expense incurred by them, for instance, travelling to Court] where, had they been represented, they would not have been able to recover them. In other words, being unrepresented does not expand the range of recoverable disbursements.
The Full Court in Oscar & Traynor [2008] FamCAFC 158 set out a non-exhaustive list of recoverable expenses including:
a)Court fees and filing fees;
b)Transcript costs;
c)Expenses of serving documents;
d)Freedom of information fees;
e)Fees for searching registers;
f)Appeal book binding;
g)Disbursements incurred by a litigation guardian;
h)Incidental expenses in relation to photocopying, postage and telephone and facsimile transmissions.
Ms Taub is clearly not a legal practitioner and thus the expansion of the above principles by authorities such as London Scottish Benefits Society v Chorley (1984) 13 QBD 872 and Lawrence v Nikolaidis [2003] NSWCA 129 would have no application (expanding upon the principles propounded above and in the context of a self represented legal practitioner engaging in preparatory work).
As neither the basis upon which costs are sought nor a quantification of same (or a particularisation of what costs and/or expenses are sought to be reimbursed) is made out, I am not satisfied that the Court’s jurisdiction pursuant to s.117(2) is enlivened and accordingly the application (to the extent that it is before me having been raised for the first time in a proposed Minute of Order tendered during the course of the hearing) is dismissed.
Further, and lest I am wrong in that conclusion, I am not satisfied that a justifying circumstance exists or has been made out. The judiciable issue between the parties related to the parenting arrangements for the children of the relationship between Ms Taub and Ms Parer and should, I am satisfied, be subject to the general rule established in s.117(1).
Further, I am not satisfied that it would be just for an order to be made and particularly having regard to the findings made by me.
The Independent Children’s Lawyer application for costs
The application for costs made by the Independent Children’s Lawyer is also governed by the operation of section 117.
Again, section 117(1) establishes the general principles whereby each party to proceedings under this act shall bear his or her own costs.
The Independent Children’s Lawyer is not a party to these proceedings although entertaining a position analogous to same and with the same standing as a party (see for instance Bennett (1991) FLC 92-191).
Section 117(2) would, again, apply and so as to reserve discretion to the Court to make an order for costs in favour of a party or the Independent Children’s Lawyer if it is considered that there are both justifying circumstances and that it is just in the circumstances.
Section 117(3) clearly expands section 117(2) so as to allow an Independent Children’s Lawyer to make an application for an order for costs and notwithstanding that they are not a party.
A number of specific provisions apply to any application for costs by an Independent Children’s Lawyer over and beyond the prescriptive and non-exhaustive list of considerations set out in section 117(2A). These include:
(4) However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
On the basis of s.117(4) the Court is precluded from making an order for costs against a party and in favour of the Independent Children’s Lawyer where a party has received (emphasis added) Legal Aid with respect of the proceedings or where the Court considers that a party to the proceedings would suffer financial hardship if the they were then required to bear a proportion of the costs of the Independent Children's Lawyer.
With respect to the ambit and scope of the preclusion of the Court’s jurisdiction by s.117(4)(a) I refer to my earlier discussion of same in Dean & Dean (unreported).
I am satisfied that as Ms Parer has been in receipt of a grant of Legal Aid for the totality of the hearing of these proceedings that I am precluded for making an order for costs in favour of the Independent Children’s Lawyer and as against Ms Parer.
However, lest I be wrong in that regard or in the event that it be interpreted that save for such preclusion that an order for costs would or might have been made, I make clear that the application would fail on all grounds.
Ms Taub has previously been in receipt of a grant of Legal Aid but has not, for the totality of the hearing of the matter, been in receipt of a grant of Legal Aid. Accordingly, I am satisfied that the Court is not precluded from making on order or entertaining an application for costs as against her and as a consequence of that fact and circumstance alone.
However, again lest it be misinterpreted I would but for s.117(4) consider making an order for costs, I make clear that I am not satisfied that an order for costs would be appropriate on any ground.
I am satisfied, as regards Ms Taub (and for that matter Ms Parer), that any order for contribution to costs made against them and in favour of the Independent Children’s Lawyer would cause them each to suffer financial hardship.
Ms Taub has the care of the three children or young persons of this relationship together with other children who comprise part of her household on a fulltime basis (being a child of her relationship with Mr P and a child of Mr P’s former relationship). Ms Taub is in employment but not on a fulltime basis. Ms Taub does not receive child support from Ms Parer.
The financial circumstances of Ms Taub’s household are not fully before the Court in that the Court has no knowledge of the financial affairs of Mr P. However, whilst that might be a relevant consideration it would not, in my mind, obviate against an order for costs or contribution to costs against Ms Taub as her facts and circumstances make it irresistible to conclude that financial hardship would be suffered by her.
In considering each of the factors set out in s.117(2A) an order for costs would be contra-indicated. This is particularly so having regard to:
a)The financial circumstances of each of the parties. Ms Taub’s financial circumstances I have described. Ms Parer is not in paid employment and is wholly dependant upon Centrelink benefits for her support. Ms Parer, on the basis of the class of benefit that she receives, does not receive the full range of potentially available benefits such as reduced travel. Accordingly the financial circumstances of each party would obviate against an order for costs.
b)Whether any party to the proceedings is in receipt of assistance by way of legal aid. This factor, combined with section 117(4) make clear that an order for costs should not be made (and based on s.117(4) could not be made) against Ms Parer. Ms Taub was previously in receipt of legal aid and thus but for her partner’s income would be in the same category.
c)The conduct of the parties to the proceedings. I cannot be critical of either Ms Parer or Ms Taub regards the conduct of the hearing. The matter has taken nine days (whereas it was initially listed for three) but through no fault of theirs. Other than one instance when Ms Taub has declined to provide information with respect to counselling in which she and her husband (and the more extended family unit) were engaged, there is no criticism or suggestion that either party has failed to comply with their obligations with respects to disclosure.
d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court. These proceedings have not been necessitated by the failure of either party to comply with previous orders. The proceedings have arisen having regard to the substantial issues discussed above.
e)Neither party has been wholly unsuccessful in the proceedings.
f)The Court is, again, not advised of any relevant offer.
g)Such other matters as the Court considers relevant.
Whilst the criteria specified in s.117(2A) are referable to the parties (of which the Independent Children’s Lawyer is not one) I am concerned that the hearing has occupied nine days on the basis, substantially, of the issues raised and explored by the Independent Children’s Lawyer in cross examination and the forensic path the matter has taken largely at the instigation of the Independent Children’s Lawyer.
Ms Parer spent nearly four days in the witness box. Three full days and a portion of the fourth day related to cross examination of Ms Parer by Independent Children’s Lawyer. This cross examination had included a ventilation of a significant number of issues which were of little, if any, relevance or importance to the issues to be determined by the Court. It had also included, at one stage, raising a line of questions with Ms Parer (and then later with Ms Taub) as to the potential of the Court making an order for no time between Ms Parer and the child, Z. That was not, ultimately, a proposition that was advanced as a desirable outcome by the Independent Children’s Lawyer. Importantly, it was not a proposition that was ever advanced by either parent nor suggested by either of the report writers.
Significant portions of time were lost (on each of the 21 March 2012, 10 September 2012 and 31 October 2012) whilst subpoena documents produced on subpoena, which subpoena had been issued at late notice and thus documents only produced to the Court on the day the matter was before the Court, were inspected. Those subpoenas were issued by the Independent Children’s Lawyer.
On other occasions material which had been produced to the Court some time prior to hearing days had not been inspected and the requirement to inspect that material before the matter could proceed, again, delayed the matter and contributed to the length of hearing.
A body of case law has developed within the jurisprudence of both the Family Court and the Federal Magistrates Court as to the role and importance of the Independent Children’s Lawyer. This has included the discussion of such matters through authorities such as Re: K, Bennett and P and P and Legal Aid Commission of New South Wales Separate Representative and Human Rights and Equal Opportunity Commission Intervener [1995] FamCA 44.
Since the 2006 amendments to the Family Law Act the role of the Independent Children’s Lawyer has been statutorily defined by s.68LA. These legislative provisions largely reflect and codify the matters previously raised and discussed in the case law referred to.
I do not propose to be overtly critical of the Independent Children’s Lawyer (and noting that there have, in fact, been two Independent Children’s Lawyer’s during the course of the matter) or the manner in which their role has been discharged save with respect to the above comments with respect to subpoena and lines of cross examination (and length of same) which, no doubt, have created in the mind of Ms Parer the perception of anything but impartiality. Such perceptions are often created erroneously and through the Independent Children’s Lawyer performing their job fully and properly and appropriately.
Two matters that do cause me some concern (and which was not the subject of criticism by Counsel for Ms Parer) are:
a)The “misgendering” of Ms Parer for portions of the proceedings and which required continuous address and vigilance and which created significant distress for and reaction from Ms Parer; and
b)The fact that the two elder children, and in particular Y, have still not been advised or appraised of the orders proposed by Ms Parer. This is particularly unfortunate as both Ms Parer and Ms Taub agreed (as did Dr B) that there would be both some therapeutic benefit to Y (in dealing with her anxieties) and some potential if not real benefit to Y’s relationship with Ms Parer if she were so appraised.
During the period that the matter has been before the Court (and particularly the seven days of hearing spread between September 2012 and November 2012) the children and young people have met with the Independent Children’s Lawyer and including prior to the conclusion of evidence and submissions on 9 November 2012. The Court was advised clearly that such matters had not been raised with the children and, thus, Y was still unaware of the orders sought by Ms Parer (her father).
It is to be remembered that Y is a young person of 12 years of age going on 13 years of age. Thus, by reference to the rights created for Y by the International Convention on the Rights of the Child and, by reference to the case law discussed above, it is part of the role and obligation of the Independent Children’s Lawyer to ensure that children and young persons of that age are involved in and appraised of matters relating to the conduct of the proceeding to the extent that it is in their best interests and in such fashion as is appropriate to their age, maturity and cognisance.
It is important that Y (and for that matter X) be made aware of the orders that were sought by Ms Parer as well as the reasons for the orders made by this Court. It is partially with this in mind that orders will be made, as already indicated, for a Family Consultant to meet with each of these children and young persons and explain both Ms Parer’s position during the trial and the orders of the Court and the reasons for Judgment (to the extent that the Family Consultant considers it appropriate).
An appointment has already been made for each of these children and young persons to meet with the Family Consultant the day after this Judgment. This had been raised with each of the parties and the Independent Children’s Lawyer (as a proposition as opposed to the specific appointment) and each of the parents and the Independent Children’s Lawyer have indicated their concurrence with the proposal.
It is my intent and desire that the Family Consultant, to the extent that they consider it appropriate, make available to each of these children and young persons the reasons for Judgment delivered by me herein.
I do not propose that the Family Consultant would provide to the children a copy of the reasons for Judgment to keep. However, to the extent that the Family Consultant may consider it desirable, useful and appropriate there is no difficulty in these children and young people and, in particular, X, reading the Judgment or portions thereof. Further, I would propose that the Family Consultant in the exercise of their discretion, they being present with these children and young people and being in a better position, as a consequence of their training, skills and experience, determine the extent to which it is appropriate and/or the extent to which the children are provided with information as to the basis for orders made by me.
I am particularly concerned to ensure that Y receives the benefit of knowing:
a)The orders that her father (Ms Parer) had proposed and the fact that Ms Parer’s position was advanced from the commencement of evidence on 10 September 2012. Y should be made aware that such orders were proposed by her father as an acknowledgement of the stresses Y was feeling (irrespective of the cause or basis for same) and with a genuine desire on the part of Ms Parer to alleviate any pressure Y may have been feeling as a consequence of orders being sought in the proceedings which compelled anything of her; and
b)The empathy that the Court has for Y’s present position, conflict and turmoil particularly noting, as the Family and Part 15 reports have, that Y has a great many things happening in her life at present and, in particular, feels “torn between her parents”.
It is my hope that by each of these children and young persons having the opportunity to meet with a Family Consultant, and being made aware of both that which has occurred between their parents in the conduct of the proceedings (and in particular the orders proposed by Ms Parer during those proceedings) and the orders ultimately made and the reasons for same, that some emotional resolution for these children may be achieved.
Conclusion
I am satisfied that orders can and should be made which will allow Z to continue her relationship with her father, Ms Parer, and to do so as abundantly as circumstances can accommodate both at present and into the foreseeable future.
Whilst parental responsibility will be allocated to Ms Taub as regards health and education, specific prescriptive orders will be made which ensure that both parents, whilst the ultimate decision will vest with Ms Taub, have involvement with a degree of equality in both the provision of information and the receipt of information as well as engagement in processes within the discretion and opinion of the providers of such services.
Otherwise, and for the reasons I have expressed above, I make orders as set out at the commencement of this Judgment.
I certify that the preceding four hundred and forty-seven (447) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 19 November 2012
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