Pillai and Pillai

[2014] FCCA 720

FEDERAL CIRCUIT COURT OF AUSTRALIA

PILLAI & PILLAI [2014] FCCA 720

Catchwords:
FAMILY LAW – Children – parenting orders – best interests of the children – protection of children from psychological harm – suspension of father’s time with the parties’ children until Court Expert can consider the father’s evidence – whether proceedings should be reopened – parental responsibility – sole parental responsibility – application adjourned for further hearing.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61C, 61DA

Applicant: MS PILLAI

Respondent: MR PILLAI

File Number: SYC 3788 of 2010

Judgment of: Judge Scarlett

Hearing date: 4 April 2014

Date of Last Submission: 4 April 2014

Delivered at: Sydney

Delivered on: 4 April 2014

REPRESENTATION

Counsel for the Applicant: Mr Lloyd SC

Solicitors for the Applicant: Newnhams Solicitors

Counsel for the Respondent: Mr Othen

Solicitors for the Respondent: J. Francis Lawyers

Counsel for the Independent Children's Lawyer: Mr Guterres

Solicitors for the Independent Children's Lawyer: Kathryn Renshall

ORDERS

UNTIL FURTHER ORDER

1. All previous parenting Orders are suspended save and except Orders (12), (13) and (14) made by consent on 26 July 2010.

2. The Applicant Mother is to have sole parental responsibility for the children [X] born [in] 2006 and [Y] born [in] 2009.

3. The children [X] and [Y] are to live with the Applicant Mother.

4. The proceedings are adjourned for the purpose of allowing the Court Expert Associate Professor Q to peruse the transcript of the hearing of this matter on 3 and 4 April 2014 and to have the opportunity to either adhere to or vary her recommendations contained in her Report to the Court dated 27 March 2014 in response to the evidence of the Respondent father in these proceedings.

5. A transcript of the evidence in these proceedings of 3 and 4 April 2014 is to be prepared on a Next Day basis.

6. The Independent Children’s Lawyer is to provide a copy of the transcript of the evidence to Associate Professor Q for her perusal.

7. The parties are granted leave to furnish to Unifam and its employed practitioners that are providing treatment to the parties or the children or both copies of the Reports of Associate Professor Q dated 7 December 2011 and 27 March 2014.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3788 of 2010

MS PILLAI

Applicant

And

MR PILLAI

Respondent

REASONS FOR JUDGMENT

Application

1. The proceedings before the Court concern the Mother’s application to vary earlier parenting orders relating to the parties’ children [X], who was born [in] 2006, and [Y], who was born [in] 2009.  The Mother has been seeking a variation and indeed a reduction of the Father’s time with the children, whereas the Father in his amended response is seeking increased time. 

2. There have been two Court Expert Reports prepared by Associate Professor Q.  Professor Q has also given evidence in these proceedings yesterday morning and has adhered to the recommendations in her reports, particularly her most recent report, which she completed on 27^th March, and was released to the parties on 2^nd April. 

3. I have heard evidence from the Mother and from the Father.  It is the Mother’s case that since this matter was last before the Court, and indeed since consent orders were made on 26^th July 2010, the Father has embarked on a process of alienation of the children, particularly the older child, the parties’ son [X], from the Mother.

4. The import of Dr Q’s reports is that indeed this process has taken place, and that it has not ceased. Dr Q, indeed, has recommended that there should be a significant reduction in the Father’s time with the children, and that at least for a period of six months, subject to a further review, that the Father’s time with the children should be supervised.  The reasons for her serious recommendations relate to the Father’s efforts to alienate the children from the Mother, which she says at page 25 of her report remain transparent, although somewhat mollified since the first assessment.

5. The recommendations that she made are based on what she describes as the considerable risk of psychological harm to the children, and the fact that the alienation dynamic in this family remains in evidence despite previous recommendations and despite the Father’s participation in counselling, and most particularly considering the very serious deterioration in [X]’s behaviour, and the emergence of ambivalence in [Y]’s relationship to her father as well. 

6. Dr Q goes on to say that it would seem at this stage that arrangements need to be made to protect the children from continued exposure to the alienation process.

7. Accordingly, she recommends that the children’s time with their father needs to be limited, and there needs to be protection provided to the children so that they do not continue to experience alienation.  Dr Q, Associate Professor Q as she is, goes on to recommend, on page 27 of her report:

   I would suggest that for a period of time the father’s time with the children be restricted to some form of supervised contact, so that the mother might consolidate her efforts with the children, and especially her efforts and those of the counsellors involved to modify [X]’s behaviour.  It is important that [X] understand why this limitation has been introduced, and that it not be seen by him as the initiative of his mother.

8. After the parties’ evidence was concluded, I have heard submission from senior counsel for the Mother, counsel for the Father, and counsel for the Independent Children’s Lawyer. 

9. There are three varying proposals before the Court, two of which, those of the Mother and the Independent Children’s Lawyer, I am asked to put in place today.  It has been put to the Court that the orders sought are urgent and that the overriding consideration is the protection of the children, particularly [X], from psychological harm.

10. As Mr Guterres of counsel, who appeared for the ICL, submitted, the protection of children from harm trumps all other considerations, and indeed it does.  I should, at this stage, set out briefly what the proposals of the parties are. 

11. The Mother’s proposal, at this stage, can be described as the most draconian, in that it seeks an immediate suspension of orders that concern the children spending time with or contacting the Father, an adjournment to allow for a transcript of the proceedings from yesterday and today to be prepared and to be provided to Dr Q to give her the opportunity to either adhere to or vary her recommendations in response to the Father’s evidence.

12. Also, it is sought that the parties be given leave to furnish to Unifam and its employed practitioners who are providing treatment to the parties and the children, copies of Dr Q’s reports of 7^th December 2011 and 27^th March 2014.  The proposal of the Independent Children’s Lawyer is also pressed upon the Court as a matter of urgency. 

13. Whilst the Independent Children’s Lawyer does not support the serious application brought by the Mother, that is not to say that the proposal of the Independent Children’s Lawyer is not regarded as any less urgent, nor does it allow for a continuation of the status quo, far from it.  The Independent Children’s Lawyer submits that the Mother should have sole parental responsibility for the children. 

14. The Independent Children’s Lawyer seeks orders that the children spend time with the Father on only one occasion per week for a minimum of two hours and a maximum of four hours and that such time be supervised either by a supervisor agreed between the parties or at a contact centre; and if that supervision is unavailable, that the Father’s time should be suspended until a vacancy at a contact centre becomes available. 

15. The Independent Children’s Lawyer seeks a continuation of counselling and the parents to do all things necessary to facilitate the children attending upon Unifam counsellors and the parties sharing equally in the cost of the supervision of the Father’s time. 

16. Counsel for the Respondent Father, Mr Othen, submits that his client does not agree with any proposal relating to suspension of his time with the children, or that his time with the children be supervised.  Indeed, his instructions are to seek final orders on the basis of the amended response filed on his client’s behalf on 30^th September 2013.  Those orders provide for the parents to have equal shared parental responsibility for the children and the children to spend time with their father on alternate weekends during the school term and for nights in the off week of the fortnight and that once [X] attains the age of 10 and [Y] attains the age of 7 there should be a further increase in the time. 

17. It is also proposed that the children spend half of the school holidays with the Father and on special occasions.  So the proposals at this stage are very different.  I indicated that due to the urgency of the proposals submitted on behalf of the Applicant and the Independent Children’s Lawyer that I would make a decision today. 

18. I have listened intently to the submissions of counsel and various parties.  Mr Lloyd of senior counsel submitted that the orders that his client seeks, whilst they appear to be drastic in their effect, were brought about by the fact that in his submission the Father has no concept as to why he is, in fact, here in court or what the potential damage to the children by way of psychological damage is being brought about by his behaviour towards the children and to their mother. 

19. The counsel for the Independent Children’s Lawyer, Mr Guterres, submits that the orders should be made today due to the imminent risks to the children. He submitted that one of the primary considerations under subsection (2) of section 60CC of the Family Law Act is the benefit to the children having a meaningful relationship with each of their parents, but the children do not have a meaningful relationship with their father.  He submitted that the risk of harm and the need to protect the children from psychological harm from being exposed to abuse by the Father is the greater of the two considerations. 

20. And he reminds the Court that under subsection (2A) of section 60CC the protection of the children from harm “trumps” or should one say, outweighs, the benefit to the children of having a meaningful relationship with both of their parents as set out in paragraph (2)(a) of the section. He also submitted that there was evidence of the Father’s disregard for the physical well-being of the younger child, [Y], particularly with her food allergies and with the food that he was feeding to the child when she was in his care. He submitted that there was a risk to the children if unsupervised time with their father were to continue. And submitted that orders needed to be made today to protect the children from significant psychological harm.

21. The Independent Children’s Lawyer is of the view that both parents are unable to shield their children from their dispute. 

22. Mr Othen, counsel for the Father submitted that the Applicant is effectively seeking to re-open the case.  This, he said, is not a trial by expert opinion.  It is a trial conducted on the evidence.  He pointed out to the Court that the Father did strongly resist the various proposals.

23. Counsel to the Independent Children’s Lawyer has submitted that the Mother should have sole parental responsibility for the children. 

24. Mr Lloyd of senior counsel in his submission in reply, submitted sole parental responsibility was the proper order and drew the Court’s attention to subsection (2) of section 61DA of the Family Law Act, which provides that the presumption that it is in children’s best interests and their parents to have equal shared parental responsibility for them does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.  He submitted there was ample evidence of psychological abuse of a child.

25. I am also mindful of the fact that under subsection (4), the presumption of equal shared parental responsibility may be rebutted by evidence that satisfies the court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility of the child. I have considered those matters carefully.  I would also comment that Mr Othen for the Father drew the Court’s attention to the cost to his client of the proceedings as did Mr Lloyd for the Mother who, in fact, submitted a memorandum of costs showing the significant amount of costs that the mother has incurred.  Those costs are being met by the Mother’s parents.

26. Certainly, there is a need for an end to litigation and it is a consideration under subsection (3) of section 60CC, paragraph (l), in fact, that the Court must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child or in this case, children. That is a consideration that cannot be ignored. However, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration. That is what I’m obliged to do under section 60CA of the Family Law Act.

27. It has been the case that from very early on in these proceedings during, in fact, the evidence of Associate Professor Q, it was envisaged that if her recommendations were followed, the Court would not make final parenting orders at the conclusion of the evidence today, but would, in fact, make interim orders because Professor Q’s proposal was that there would be a significant reduction in the Father’s time with the children, that the Father’s time would be supervised and that the situation would be re-assessed after a period of six months or perhaps a little bit more. 

28. I, in fact, asked Professor Q some questions about that.  I also asked Professor Q about the effect on the children if the Court were to make an order suspending the Father’s time completely as far as the children were concerned.  It is fair to say that it was not a proposal that met with her approval because she was concerned about the distress that the children would suffer if they did not have any contact with their father.  That is a matter that I must take into account.  It is not unfair to say that the Mother’s proposal, if I were to follow it, would lead to a re-opening of the case because it is proposed that a transcript of the proceedings would be provided to Professor Q, so that she could have an opportunity to either adhere to or change her recommendations in respect of her latest report. 

29. It was necessary for Professor Q’s evidence to be taken first on this occasion because she was available yesterday morning, but was not going to be available today.  Accordingly, the circumstances dictated that her evidence should be taken first off before the Court heard evidence from either the Mother or the Father.  If I were to accede to the application by the Mother, that would involve Professor Q re-evaluating the situation and either deciding that her recommendations remained or that they should be changed.

30. I have listened intently to the evidence of Professor Q and read her reports thoroughly.  I have listened intently to the evidence of the Applicant and the Respondent and I have read their affidavits. 

31. It appears to me clear that the concerns expressed by Professor Q in both of her reports to the Court that the Father has conducted and continued to conduct a process of alienation of the children, particularly [X] from the mother is well-founded.  It is indeed on the evidence before me of the Mother which I accept, a most blatant attempt and a continuing attempt by the Father to alienate the children from the Mother. Despite the Mother’s protests, the Father has continued to do so. 

32. It is, in my opinion, having heard the evidence of the parties, a process of alienation so blatant and so persistent that it could well be described as an attempt to sabotage the children’s relationship with their mother.  This cannot in any way be in the children’s best interests, quite the reverse.  It is quite clear from the evidence that I have heard and from the evidence of Professor Q that this would be a cause of serious psychological damage to the children, which would affect their long-term well-being.

33. It is also a concern that the Father appears to lack the understanding of the concerns of food allergies in relation to the little girl, [Y], which in certain circumstances could be lethal to her.  The Mother’s evidence of the Father saying that the children did not appear to suffer any allergies when they were with the Father is, to my mind, astonishing.  My concern is that the Father lacks entirely an insight into the damage that is being done to his children by this systematic process of alienation of the children from their mother.  It must stop.  What is needed for the best interests of the children is for them to be given some breathing space.  It was put by Mr Lloyd of senior counsel in his short submission and reply, that there was need for “a brief time out”. 

34. In my view, the children need time out.  The Mother needs time out to organise a regime for the children where the children are subject to the usual amount of regulation and discipline that children must need so that the children can receive one message as to what they need to do and that is not a message that is destructive to the relationship with either parent. 

35. It would be equally reprehensible for the Mother to embark on any sort of a campaign to alienate the children from the Father.  I am mindful of the concerns of Professor Q of the effects on the children and their distress at being separated from all contact with their father for any period of time.  It would not be my view that an order suspending the children’s time with their father on a long term basis would be in their best interests.  It would be a cause of distress and confusion to them and that would be difficult for their mother to deal with but at this stage there needs to be some time out so that the evidence can go before the Court expert, Professor Q, especially the evidence of the Father, and so that she has the opportunity to comment and either make further recommendations or adhere to her current recommendations. 

36. I propose to allow that time which is why I am acceding to the serious proposals put forward by senior counsel for the Mother and I propose to make orders suspending the parenting orders, subject to certain exceptions relating to the Family Law watch list, effective today.  I propose, once arrangements have been made for transcripts to be obtained and forwarded to Professor Q, to bring this matter back to Court quite quickly.  I understand that if I am to order a transcript of these proceedings on a next day basis that a realistic estimate is that the transcripts might be available by Wednesday of this coming week.

37. As it turns out, I have a couple of days that have become available the following week on 16^th and 17^th April, the Wednesday and the Thursday leading up to Good Friday, due to the fact that a hearing is unable to proceed.  I do not know if those dates would be workable or in fact suitable to the parties.

38. I might also add that I may not have entirely made clear why it is that I proposed to make an order that the Mother is to have sole parental responsibility for the children. 

39. In my view the evidence of the oppositional behaviour by the Father leading to the alienation of the children from the Mother or his attempts to do that, would make anything other than sole parental responsibility entirely unworkable and in my view it would not be in the children’s best interests for their parents to have equal shared parental responsibility.  I hope that that reason is clear to the parties.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 10 April 2014