Parker and Burwood

[2008] FamCA 1214

FAMILY COURT OF AUSTRALIA

PARKER & BURWOOD [2008 ] FamCA 1214

FAMILY LAW – CHILDREN – With whom a child spends time – Recovery order – Stayed
FAMILY LAW – CHILDREN – INJUNCTIONS – recording – discussing court proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Parker

RESPONDENT: Ms Burwood

FILE NUMBER: SYC 8423 of 2007

DATE DELIVERED: 9 December 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 9 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wong

SOLICITOR FOR THE APPLICANT: Musgrave Lister Family Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the orders of this Court of 19 November 2008 as they varied the orders of 6 December 2004 made by the Federal Magistrates Court be further varied to provide that in relation to the upcoming Christmas period the children C born … September 1997, and L born … May 2000 spend time with the father from the conclusion of school on Friday, 12 December 2008 until 8:00 pm on 26 December 2008.

2. That effect be given to these orders by the mother causing the children to attend school on 12 December 2008, by the father collecting the children from school at the end of that school day and by the father returning the children to the mother by 8:00 pm on 26 December 2008.

3. That the mother be restrained from removing the children from school prior to the conclusion of school on 12 December 2008 and from attending at school after delivering the children to school on that day.

4. That not later than 4:00 pm on 10 December 2008 the mother send to the solicitor for the father by facsimile a copy of the birth certificates of each of the children.

5. That the Marshal of this Court, all officers of the Australian Federal Police and of each of the Police Forces of the States and Territories of Australia be authorised and directed with such assistance as they may require and if necessary by force, to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the children C (male) born … September 1997 and L (female) born … May 2000 may be found and to recover the children and to deliver the children to the father.

6. That the operation of Order 5 herein be stayed until 3:30 pm on 12 December 2008 AND leave is granted to the solicitor for the father to notify Judicial Registrar Loughnan’s associate in the event that the orders made today are not complied with on 12 December 2008.

7. Orders are made in terms of paragraphs 1 and 2 of the father’s Minute of Order marked Exhibit A as set out hereunder:

   “1.The mother be restrained from recording, by any audio-visual electronic method, any words expressed by the children and or either child regarding their father or time spent with the father and shall be similarly restrained from permitting or causing a third party to record the children and or either child.

   2.The mother be restrained from discussing the court proceedings with the children and or either child or permitting or causing a third party to discuss the court proceedings with the children or either child, except to inform the children as to the time, date and location of any communication or time ordered as between the father and children.”

8. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children C born … September 1997 and L born … May 2000.

9. The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.

10. The solicitor for the father is to advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of New South Wales of this order within 24 hours.

11. Each party make available to the Legal Aid Commission of New South Wales, within 7 days, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

12. That the parties facilitate the attendance upon their representative of the children at times, dates and places requested by the representative.

13. That the costs of today be reserved.

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8423 of 2007

MR PARKER

Applicant

And

MS BURWOOD

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to two children, C and L, who are 11 and 8 years of age respectively.  The parents are both 30 years of age. They started to live together in 1997, were married in 1999 and separated in 2001.  There are some orders I think from about 2004 which fell into disuse.  The matter came to me on 19 November 2008 after there had been a level of disputation between the parties during the year. I was asked to make orders about what would happen this Christmas.  The original orders made a provision for something to happen.  There had been an interruption in the program, the father says, substantially because he was posted overseas.  The mother says substantially because he did not care enough to spend time with the children during that period.

2. On 19 November 2008 I made some orders providing for an arrangement that I understood, the parties had agreed to. It was an arrangement the mother had suggested for some time in relation to the weekend of 28 November. I also made order for time over Christmas, starting on the 14th, ending on the 28^th December 2008.  

3. The occasion of the weekend of 28 November did not go ahead and the father brought this application seeking orders to ensure compliance with the arrangements in relation to Christmas. I think the concern there was that the father’s time started on the 14th, which is a Sunday, and enforcement action, if that was necessary, would then eat into the time that the children were to spend with him. Sunday is a day when it is hard to make arrangements to cause compliance. The father sought a number of orders in his application, including that the time start earlier - on Friday next, the 12th.  It was submitted that would mean a changeover at school rather than a delivery to the airport.  He sought that either a recovery order issue and to lie in the registry and await a satisfactory outcome of the events before Christmas or, in the alternative, that the matter to be brought back on short notice or no notice to enable the orders to be enforced. 

4. As a result of what was put in the mother's affidavit, there has been a minute of orders prepared in relation to a number of other issues. 

5. The mother, for her part, opposes the orders that the father seeks and seeks an order staying the original orders.  They were made in the Federal Magistrates Court in 2004.  And seeks that the orders that I made on 19 November be vacated.  Then there is an order sought about the costs of contravention proceedings.  I do not know what that is about. 

6. The mother is here today.  She does not have legal representation.  She has prepared an affidavit and the affidavit has been read, as has the affidavit of the father, and the parties made submissions to me. 

7. What we have really is a clash of expectations against reality.  The mother asks in her response for things that I cannot deliver.  For example, to just set aside the orders that I made on 19 November.  In effect, what she says is that although the case that was argued before me on 19 November related to the timing of two periods of unsupervised block holiday time between the children and the father, even at that time she did not think that was in the best interests of the children at all. She thinks that before there is any period of block time there should be a satisfactory reintroduction between the children and the father. That is necessary because she feels that over recent years the father has failed in his obligations to spend time with the children. I explained to the mother how dangerous it is to go before a Court and ask for something other than what you think is in the best interest of a child.  I think I have got through to her about that. 

8. I must say the mother telling me that gives an explanation for the fact that, according to the father, she behaved quite oddly apparently after I left the Court on the last occasion. The father says the mother screamed at him, "Congratulations, you fucking arsehole, you've ruined my family.  I am there 24/7.  I'll be on the first plane overseas and you'll never see them."  He observed the mother beating her fists against the wall, screaming and crying to the extent that he observed security officers attend the floor.  He entered a conference room and he could still hear the mother continuing to scream and cry and she continued to do that until such time as he left the Court. The behaviour was apparently the mother’s reaction to the fact that the hearing was about unsupervised block periods when the mother did not want there to be any block periods.  

9. One can understand to some extent, how we got into the current situation. However, as I have explained to the mother, my problem is I have heard the matter, nothing has happened since I heard the matter that would mean that I would change the orders to reduce the time that the father has with the children because the only thing that has happened is the mother has not complied with the orders in relation to the weekend that was to occur.  That weekend occasion was her suggestion.

10. The orders when they issue come with an attachment at the back and it says:

    You must do everything the parenting order says.  In doing so you cannot be merely passive, but must take positive action and this positive obligation includes taking all reasonable steps to include that an order is put into force.  You must positively encourage your children to comply with the orders.

11. It goes on with detail about that.  There is no evidence that the mother did that.  In fact, consistent with what she says today, I do not think she wanted them to go. That makes it hard for her to encourage time. 

12. The mother recites what happened after 5 November 2008. She says the father would not negotiate.  The children told her about what had happened when they saw their father on 15 November.  C told her, "He won't love me if I don't go," and L said, "He is scary.". The mother says:   

    I asked the children if they felt comfortable going with the applicant father for the weekend, but they both said no, they wouldn't go.

13. So she called the applicant father and cancelled the weekend visit.  "Both the stepfather and I" - that is, the mother's partner – “offered the children to phone the father, but they refused.:  She says about the 28th:

    Both [Mr M] -

    that is, her partner -

    and I gave the children many opportunities to go and spend the weekend with the applicant father, but on all occasions they refused.   The police came to my house on the evening of 28 November to check on the children. 

14. She says the father left a message on the landline answering machine and again she invited the children to make contact with him but they refused. 

15. What the father says is that he spoke to the children on the day of the Court hearing, the call went well, the children were happy on the phone and excited about seeing him on 28 November. The children said words to the effect  "I can't wait to see you, dad,"

16. On the 21st he rang twice and there was no call back or message. On the 24th he rang three times with no call back. On 25th he rang three times and there was no call back.  On the 26th he rang twice and there was no call back.  On the 27th, he rang four times and there was no call back.  We know now from the mother her reaction to that was to ask the children if they would like to speak to their father. 

17. There is no evidence that the mother said she wanted the children to go with their father, that she encouraged them in any way to go.

18. The mother is under the misapprehension that this is up to the children.  Children of 11 and 8 do not have a choice about going to school.  They do not have a choice about when they go to bed.  They do not get a choice about whether they take drugs.  They are not given the option of drinking alcohol.  They are not given the option about whether they will have dental treatment.  They are not given the option about whether they will have medical treatment.  Those are the sorts of things the legislation says are the equivalent of the importance of a relationship between the children and the other parent. 

19. So you cannot imagine ever the hospital ringing up and saying, "Your child has got to be booked in tomorrow," and the mother saying, "The hospital rang.  Would you like to ring the hospital back and explain why you don't want to go?" There has been a complete misunderstanding by the mother.

20. Perhaps that is not the mother's fault, but it is going to cause problems if it continues.  We have a system whereby parents make decisions about children.  If they cannot agree, they can come to a Court.  If a Court makes a decision, it has to be complied with. Compliance, in this instance means the mother has to pretend as if she believes it is in the best interests of the children for them to spend time with the father.  She does not have to be happy with an order.  She can apply to have the order set aside.  I have not been told that there has been any application until now, notwithstanding that the orders were made some weeks ago, to set aside the orders that I made. The orders must be complied with.  It is not a matter that is left up to the children.  They have to be complied with by the mother and the father.

21. It is possible - it is unusual in my experience - that the father is a completely crazy person who wants to spend money on lawyers so that he can bully the mother into giving him time with the children just to ruin their lives or to be controlling.  That is possible.  I have only done this work for 13 years and I have not seen anybody like that, but it is possible that is father is such a person.  But if that is the case, the mother has to make an application that reflects what she actually wants. She can challenge orders if they are made. It needs to be said that it is not likely that the father is such a person. The mother talks about, and the father talks about, the fact that C said things about missing his father and wanting to spend time with his father.

22. It is not so much a matter of not trusting the mother, but until it is clear that she will be able to do comply with the law, it is better to pick a mechanism that is more likely to deliver compliance with the orders.  Like both parties, I am reluctant to have the police involved in causing compliance with the orders.  It is not a good start to a holiday occasion.  But I am obliged to cause compliance with Court orders and that is the only system we have.  It is not perfect, but that is the system we have. 

23. Just before I forget, I went through the matters I was required to take into account on the last occasion when I gave reasons about the orders I made.  There is nothing about turning 12 that changes the status of a child's wishes from one thing to another.  C’s views will be influential to the extent that they are able to be put before the Court properly.  And L’s views will be influential to the extent that they are able to be put before the Court properly.  Account will be taken of their age and when there is some evidence about it, their maturity and level of understanding that would be relevant to taking their views into account. 

24. The problem with a case like this is, of course, the parties will not agree about what the children's views are.  It is also possible that children caught in the middle like this might well say things to each of their parents that they think their parents want to hear.  So there can be that confusion as well.  The way that is dealt with to have a lawyer represent the children. Then there is somebody they can speak to that does not have an axe to grind between the parents. If necessary, in the preparation of the matter for a final hearing an expert can be appointed who is qualified in dealing with children and getting information from children in a way that is safe, does not force them to choose between their parents, does not force them to be disloyal to obtain a representation of the children's real views about things to the extent that that is important.  It is not determinative of the thing of course.  As I said, the children are not going to have a final vote at this sort of age. It may be different when children are 15, 16.  But if the parties propose something and the children agreed with the proposal, if that was to endanger a child, then the Court would not necessarily do it even though the child agreed.  

25. I think the best case - and I traversed this with the parties during the course of submissions - is bring the commencement back to the Friday beforehand so that the collection can be at school.  That means the mother is not put in a position at the point of handover where she has to be disingenuous about the handover arrangements.  I will make an order that she cause the children to be delivered to school, that she not collect the children prior to the close of school and then the father can collect them at the end of school.  The mother said the orders provided for a block of time and this should not be increased.  The father is sympathetic to that.  He can get them back two days earlier, on Boxing Day.

26. I am going to make a recovery order and stay its operation until a time after the close of school on that Friday.  That will mean that if the order is to be activated, the father through his solicitor will need to contact my Associate to have the warrant released. It is preferable not to leave a recovery order ready to be executed. The order will be there.  It can issue if there is a problem.  The police execute these orders carefully, but with the best will in the world it is not an ideal way to start a holiday occasion. Everybody would hope that that is not necessary. However, the community's investment in this whole process is just thrown away unless I can cause compliance with the orders.  As I say, it might not be a good system and there may be a better system.  It may be a better system to say parenting arrangements are left up to the children.  That might be a better system.  But I am stuck with the one we have and I am obliged to cause compliance with the orders. 

27. The mother raised in her affidavit her plan to videotape the children.  She says:

    A video diary will be kept of the children after their visit with their father so that come February when he seeks to change the 2004 orders the disturbance he has caused in their lives can be shown and it will no longer be my word.

28. It is entirely inappropriate that children be recorded, whether it is by video or audio, for a forensic purpose.  I mentioned the mechanisms we can put in place in relation to the children.  We can have an expert see the children. We can have a lawyer appointed for the children.  The parties can give evidence about their observations in relation to the children.  But that is it.  If there is to be any formal observation of the nature of a video recording or audio recording, if there is to be any testing, questioning, involvement of the children in these proceedings, that needs undertaken by somebody who is qualified to do that in a way to minimise the risk to the children. There is a term "systems abuse" which is used in relation to the damage caused by repeated observations.  There is research about the damage and the lack of efficacy of questioning of children in relation to events. 

1. Everything that is done by the parents in relation to the children will have an impact on the children.  As I said to the mother during the course of submissions, whatever the mechanisms have been in the mother's household up until now for dealing with important issues in relation to these issues there is going to have to be a winding back of them so that these proceedings are not discussed in any detail with the children or in their presence and they are not tested, videotaped or recorded in the way that has been proposed. 

2. The mother says that she has the children's birth certificates and she will be able to provide photocopies to the father's solicitor. 

_____________________________________________________________________

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan.

Associate:     
Date:              27 February 2009