Parsons and Prendergast (No. 9)

[2007] FamCA 1092

FAMILY COURT OF AUSTRALIA

PARSONS & PRENDERGAST (NO. 9) [2007] FamCA 1092

FAMILY LAW – CHILDREN – Ordering further assessment interview between 7 year old child and Family Consultant – Opposed by husband – Orders made for assessment.

Jones v Dunkel (1959) 101 CLR 298

APPLICANT: Mr Prendergast

RESPONDENT: Ms Parsons

FILE NUMBER: DGF 764 of 2004

DATE DELIVERED: 17 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 17 September 2007

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Eidelson

SOLICITOR FOR THE RESPONDENT: Berry Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Brewer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robert Halliday & Associates

Orders

1. That an updated family report be prepared as a matter of urgency by Ms K further interviewing the child born on … February 2000 for the purpose of the current proceedings at a time and place to be nominated by the Independent Children’s Lawyer AND THAT the said Ms K, in addition to matters she may deem appropriate, enquire of the said child:

   1.1the hours she is delivered to and collected from school by each of the husband and the wife;

   1.2the circumstances of a specific haircut she had in July 2007 (photographs, Exhibit “ICL4”);

   1.3the cleanliness or otherwise of the respective homes of the husband and the wife;

   1.4the general activities of the said child when in the care of each of the husband and the wife;

   1.5the sleeping arrangements of the child when in the care of each of the husband and the wife;

   1.6the quality and standard of meals provided by each of the husband and the wife;

   1.7issues concerning the personal hygiene of the said child when in the care of each of the husband and the wife; and

   1.8such further and other matters as may be deemed appropriate by the Family Consultant.

2. That the Independent Children’s Lawyer do forthwith advise the said Ms K of the order made this day.

3. That the preparation of the order be expedited.

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed, placed on the court file and provided to the parties.

IT IS CERTIFIED

(5) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 764  of 2004

MR PRENDERGAST

Applicant

And

MS PARSONS

Respondent

REASONS FOR JUDGMENT

1. During the course of the hearing last week I indicated to both counsel and to the husband that given the date of the report of Ms K being December 2006, there ought be some form of update and assessment by way of interview with the child.  This particularly became prominent following the two interviews that the child had with Mr Halliday, the Independent Children's Lawyer, on 26 February 2007 and 13 July 2007. 

2. As a result of that discussion, Mr Halliday has arranged for the child to meet with Ms K on Wednesday, 19 September 2007.  This course is not opposed by Mr Eidelson, nor by Mr Brewer.  The husband however opposes any orders being made for this to occur. 

3. I have listened earnestly to all that the husband has put this morning.  The reasons he advanced are that it is because of “the past behaviour” (to use his words) of the wife, including what he described as the “many times” she has prevented the child from seeing him, and which are specifically referred to in the affidavits that have resulted in the child’s current presentation.  In particular he referred to the incident recently in July 2007 where he did not see the child for several weeks.  That, of course, has been part of the evidence before me.

4. The husband submitted that he was concerned that this is an attempt by the wife to influence the child to sway the report.  That is consistent with his view that the child has been “brainwashed” by the wife.  He submitted that the interview Mr Halliday had with the child in July 2007 showed "factual error and vocabulary not used" by a child of the child’s age.  It appears to me that the husband’s submission failed to understand that his notes were, in the main, a narrative notation interspersed with other matters introduced by the child.  The husband further submitted that such an interview would be very stressful for the child as another reason that "it should not happen" at this stage.  He ended his submissions by saying that he was concerned that the child continues to be “brainwashed” by the wife.

5. A number of quite significant pieces of evidence relating to the general care, nurture and welfare of the child (who was born in February 2000) have arisen during the course of the trial, which is now in its ninth day and has spanned a time frame of some six months.  I have heard from both the husband and the wife, albeit that the husband is now entering day 3 of his cross‑examination of the wife.  I have also heard from the husband's witnesses.  What has stood out in sharp relief is the utterly polarised version each of the parties have given in relation to their care of the child. 

6. I have before me two exhibits of notes taken by Mr Halliday of his interviews held with the child on 26 February 2007 (Exhibit “ICL1”) and on 13 July 2007, (Exhibit “ICL3”), which have been the subject of evidence given by each of the parties.  Those issues concern (inter alia) information provided by the child to Mr Halliday on matters that appear of considerable personal concern to the child.  Issues such as being late for school following spending time with her father, the cleanliness of his home and standard of care, including sleeping arrangements, leisure activities, personal hygiene and of meals. 

7. It is proper to observe that this case has changed markedly with its progress.  It commenced with the husband seeking that the child live with him and that the time spent with her mother be supervised.  He has maintained a rigid focus, without waiver, to establish that the wife has or was and remains, psychiatrically disturbed and has subjected the child to constant "brainwashing".  By that he is seeking to establish, to the requisite standard of persuasion, that the wife has endeavoured to alienate the child against both him and his family.  That remains his position to this day.

8. For the wife, she commenced the proceedings avidly in support of the husband spending time with the child.  However, as the case has progressed and the reality of the evidence became progressively clearer and given the husband's refusal to attend upon Dr E despite my court order and the subject of my various judgments delivered to date, the wife's position has changed. 

9. As recently as July 2007 the child sought that she have a break from spending time with her father and which was in fact put into effect.  The matters of which she complained to Mr Halliday were accepted as the truth of the record made, but vehemently denied by the husband as to the truth of its content.  The husband explained the child’s comment as being "brainwashed" by the wife, which was consistent with the wife's psychiatric condition.

10. Mr Eidelson has indicated that he will be asking me to draw an adverse inference as explained in Jones v Dunkel (1959) 101 CLR 298 against the husband for his refusal to attend for a psychiatric assessment and that his time to be spent with the child be suspended until further order.

11. What is clear is that the child has expressed a number of concerns to the Independent Children's Lawyer.  There is evidence for example that she is late for school when in the care of the father and that she arrives in a dirty and unkempt condition.  I have yet to make my findings as to whether or not I accept those facts or matters raised.

12. As matters presently stand however, and subject to further argument, I thought the evidence of the wife was quite compelling.  The husband spoke of the child not sleeping, of headaches and general ill disposition on the child’s part which he claims is caused by the wife's “brainwashing” of the child.  That of which he complains occurs in his house.  The wife says this does not occur when the child is in her care. 

13. In the course of her evidence on 13 September 2007 the wife spoke of her distress having now heard what the husband had to say and that of his witnesses and has formed a genuine concern that the husband is not caring for the child in an appropriate manner.  For example, she had this to say through the interpreter:

    And then she will suffer what I used to suffer from when I used to be with him.  He was destroying my personality in total.  I really thank the Lord that I could put up with all this and I can cope with this, but I'm not sure that my daughter can put up with this and cope with it.  I'm asking, you know, the court if we can ask him to go and seek psychiatrist, you know, help or any sort of help because I cannot trust that my daughter go and stay with him.

    [Later:]

    I was very happy after separation.  I was more confident and successful. 

    [She continued:]

    I was feeling comfortable after separation and I'm moving on with my life.  I'm trying to study.  I'm trying to look for a job and, you know, my confidence came back to me, and I've got my personality now.  And [the child], she's, you know, spending most of her time at school and at my place, and she's really happy and she's very comfortable, and she's not doing any weird action either at home or at school.  She is very, very good.  When I came here and I heard the witnesses from his family talking about [the child], you know, doing weird action on their head and tears and, you know, some action which is weird, you know, this means that, you know - she doesn't do these sort of things at home or at school - at my place or at school. That means that something's happening there, you know, unexpected or unusual that makes her, you know, act like this.

    [Later:]

    Even when I referred to the sleeping unit in Monash Hospital when her dad asked for that, because he said that her sleep is irritated, is not normal, you know.  I was surprised because, you know, she sleeps well at home.  When she went to Monash, the report of Dr [R] say that she sleeps very normal, very well, nothing wrong with her sleep, just apart from, you know, she's got a problem, you know, with her nose, and she need to be treated from that.

14. I appreciate that the child is only seven years of age.  However, she has spoken to Mr Halliday and also sought his assistance for a break from spending time with her father.  She appears to be a quite mature little girl.

15. There are important issues for my determination and I need all the assistance I can which includes the independent assessment and report of Ms K.  I appreciate that the husband is in opposition to this course, but in my view for no good reason.  It is an exercise of my discretion with the best interests of the child in mind as the paramount consideration. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  18 September 2007.