Pillai and Pillai (No.2)

[2014] FCCA 1307

FEDERAL CIRCUIT COURT OF AUSTRALIA

PILLAI & PILLAI (No.2) [2014] FCCA 1307

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – parental responsibility – sole parental responsibility – supervision of father’s time with children.

Legislation:

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

Cases cited:
Pillai & Pillai [2014] FCCA 720

Applicant: MS PILLAI

First Respondent: MR PILLAI

File Number: SYC 3788 of 2010

Judgment of: Judge Scarlett

Hearing date: 11 June 2014

Date of Last Submission: 11 June 2014

Delivered at: Sydney

Delivered on: 11 June 2014

REPRESENTATION

Counsel for the Applicant: Mr Lloyd SC

Solicitors for the Applicant: Newnhams Solicitors

Counsel for the Respondents: Mr Othen

Solicitors for the Respondents: 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 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 16 June 2006 and [Y] born 27 April 2009.

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

4. The children [X] and [Y] are to spend time with the Respondent Father as follows:

   (a)On one (1) occasion each week for a minimum of two (2) hours and a maximum of four (4) hours;

   (b)The children’s time with the Father is to be supervised by a person agreed between the parties and failing agreement at a children’s contact centre reasonably close to the residence of the Mother; and

   (c)In the event that a suitable contact centre is unavailable, the children’s time with the Father is to be suspended until a vacancy arises.

5. In the event that there is no agreement about the contact supervisor the parties must within seven (7) days fulfil all the intake requirements at the children’s contact centre referred to in the immediately preceding Order and do all things necessary to facilitate the children spending time with the Father on days and at times nominated by the contact centre.

6. Each party is to continue to participate in counselling with Unifam and comply with all reasonable recommendations and accept all referrals made by that service.

7. The parties are to do all things necessary to facilitate the children attending upon counsellors at Unifam as directed by that service.

8. The parties must share equally the cost of supervision of the Father’s time with the children.

9. The Father must comply with any direction of the Mother in relation to the provision of medical care and dietary requirements of the children at any time that they spend with him in accordance with these orders.

10. The Application is adjourned to 17 March 2015 for further mention at 10:00 am.

11. The Independent Children’s Lawyer is to have liberty to apply on seven (7) days’ notice.

IT IS NOTED that publication of this judgment under the pseudonym Pillai & Pillai (No.2) 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

First Respondent

REASONS FOR JUDGMENT

Application

1. In a decision made on 4^th April 2014, the Court ordered that the parties’ two children, [X] and [Y], were to live with the Mother and she was to have sole parental responsibility for them. Other parenting orders were suspended, which has meant that the children have spent no time with their father since then.

2. The purpose of those Orders was explained in the Reasons for Decision delivered that day. The Court Expert, Associate Professor Q, had given her evidence and affirmed the opinion given in her updated report prepared in March 2014 that the only way to ameliorate the risk of psychological harm to the children from the Father’s alienating behaviour was for the Father’s time with the children to be supervised, “if not in the long term, at least for long enough to provide the children with some respite from the alienating process and to consolidate their relationship with the mother.”[1]

   [1] Family Report 27 March 2014 page 21 at (c)

3. The fact that more draconian orders were made on 4^th April was because Professor Q had not had the opportunity to hear or be made aware of the Father’s evidence in cross-examination, which, it was submitted, demonstrated a profound lack of understanding as to why he was present in Court or what the potential damage to the children by way of psychological damage was being brought about by his behaviour towards the children and their mother.[2]

   [2] Pillai & Pillai [2014] FCCA 720 at [18]

4. Over the intervening period, which turned out to be longer than anticipated due to circumstances beyond the control of the parties, Professor Q has had the opportunity to peruse the transcript of the Father’s evidence and consider whether she considered it necessary to change her recommendation as a result of the Father’s evidence.

5. I am informed that Professor Q has expressed the view that her recommendation remains unchanged. 

Competing Proposals for Interim Parenting Orders

1. The Father has submitted a Minute of Proposed Orders, setting out what he considers should be the appropriate arrangements between now and a suitable date in September, when the matter will be brought back to Court. His proposal, it was submitted, would allow the children to spend time with their father in a more natural environment than a contact centre.

2. His proposal would have the two children spend time with the Father each Saturday between 9:00am and 5:00pm, on Father’s Day, between 9:00am and 5:00pm, on the Father’s birthday and between 9:00am and 2:00pm on the children’s birthdays and otherwise as agreed by the parties.

3. The proposal is the time that the Father spends with the children be supervised by Ms E or some other person as agreed to by the parties. The orders that are proposed set out some administrative arrangements and set out a restraint on the Father from discussing the proceedings in the presence of the children or making any comments to the children that would undermine the Mother. 

4. In support of his proposal, the Father has submitted an affidavit and an undertaking by Ms E, a work colleague, who has agreed to supervise the father’s time with the children if the Court should so order. Ms E gave oral evidence and was cross-examined by Mr Lloyd of Senior Counsel for the mother and Mr Guterres of Counsel for the Independent Children’s Lawyer.

5. Neither counsel supported Ms E’s appointment as a supervisor.

6. The Independent Children’s Lawyer has adhered to the orders that were proposed to the Court on 4 April. Those orders are in accordance with the recommendation made by Professor Q. 

7. In summary, those orders propose that the Mother should have sole parental responsibility for the children and that the children should spend time with their father on one occasion per week for a minimum of two hours and a maximum of four hours, that time to be supervised by a person agreed between the parties and failing agreement, at a contact centre.  And in the event that a contact centre is unavailable, the Father’s time would be suspended until a vacancy was available.

8. The orders anticipate the parties continuing to participate in counselling with Unifam and doing all things necessary to facilitate the children attending upon counsellors at Unifam, as directed by that service. 

9. Whilst the Father’s proposal would see the matter come back to Court on a date in September for a review, the Independent Children’s Lawyer has taken a more cautious view.  Mr Guterres put to the Court that these arrangements should be in force for a period of six months, commencing from the date of the making of the orders. 

10. Senior counsel for the Mother submitted that the Mother’s proposal was similar to that put by the Independent Children’s Lawyer, except that the period of time for which those orders should be in force would be a period of 12 months from the date of these orders and that there should be the ability to bring this matter back in the event of untoward circumstances occurring. 

11. Mr Lloyd referred the Court to the two reports by Associate Professor Q, referring in particular to the Father’s efforts at alienation of the children and the psychological damage that could be done. He submitted that the children needed a period of respite from the Father’s undermining of the Mother and that the mother, too, needed to be removed from the situation where, as Professor Q reported at page 21 of her report released on 2^nd April this year, that the Mother was stressed and anxious as a result of the ongoing difficulties with the Father and most particularly the very serious problems manifest in [X].

12. I did express some concern that interim orders would be in force for a period of 12 months. I pointed out that these proceedings have to be finalised at some stage, although, of course, that must be in accordance with the best interests of the children, because it does remain, under section 60CA of the Family Law Act 1975, that the best interests of the children are the paramount consideration. The primary considerations for the court in determining what are the best interests of the children are to be found in subsection (2) of section 60CC. The Court must balance the benefit to the children of having a meaningful relationship with each parent and the need to protect the children from harm, in this case psychological harm.

13. I have given these three competing proposals serious consideration.  I listened with great interest to the interest of Ms E.  There is no doubt she is a well-intentioned and public spirited person.  She is a mother of a family and I have no doubt that she is a good citizen.  However, concern was expressed as to what degree of training she had in this difficult area, especially bearing in mind the Father’s alienation of the children, which Professor Q noted he was able to tone down when he was interviewed for the second updated family report.

14. I also expressed to counsel my concern that, with the best will in the world, Ms E could not be regarded as an entirely independent person.  True it is that she is not a family member, as is often the case when people are suggested as supervisors, but as a work colleague of the father, she cannot be said to be independent at arm’s length.  Her appointment, as I said, was not supported either by the Mother or by the Independent Children’s Lawyer. 

15. I am conscious of the fact that the children have spent no time with their father since early April.  The evidence does not support the proposition that the children should not spend any time with their father for the rest of their childhood.  There needs to be a resumption of time, but it needs to be in circumstances that do protect the children from psychological harm.  I am not satisfied that the period between now and September in the father’s proposal would allow sufficient time for the children to settle into the new relationship and for the Mother’s position to be strengthened as the children’s primary caregiver. 

16. I am also of the view that the Father’s proposals for supervision do not meet the needs of protecting the children in this case.  My final concern is that the amount of time proposed by the Father is significantly greater than is recommended by Associate Professor Q.  Having read her reports and having listened with great interest to her oral evidence, I see no reason why the Court should disregard her recommendations. 

17. It appears to me that the framework proposed by the Independent Children’s Lawyer, which would involve, essentially, the one period of contact each week for a period of two to four hours and, in the absence of a suitably agreed supervisor, which does not seem to be on the cards, would take place at a contact centre, is an appropriate way of maintaining the children’s relationship with their father whilst reducing the risk of the Mother’s parental position being undermined or alienated by the Father. 

18. I am certainly of the view that during this period of time it should be open to the Independent Children’s Lawyer to bring the matter back to Court. That gets me to the proposed period of time. The Independent Children’s Lawyer, as I said, was of the view that it should be six months and should not start until now, which would mean that the Court would be looking at the matter again in December.  Counsel for the Applicant Mother suggests a period of 12 months, which would bring the matter back to Court next June. 

19. It does not appear to me that any period of less than six months would be suitable in the circumstances.  The children need time to settle into the new routine.  December is a difficult time, in that the Court is traditionally extremely busy and the Court would not be able to devote a great deal of time to the requirements of the matter if it were to come back in December. 

20. I am firmly of the view the arrangement should extend into the New Year.  I do not consider that it is necessary for the arrangement to extend as far as next June, but I propose to make orders today which would be reviewed again by the Court on 17^th March next year.  That, I think, would allow a reasonable period of time for the children and for the mother.  It is for those reasons that I make orders until further order.  I would say that I consider that it is preferable for there to be one set of orders to set out the arrangement, which is why I make these orders. 

21. I require a transcript of my reasons for this decision.  I can inform the legal advisors for the parties that sealed copies of these orders will be made available by my associate this afternoon.  The transcript will come through in the next few days and will be posted out to the lawyers for all parties as soon as it is available

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  20 June 2014