Pitman and Hynes and Anor (No. 2) - [2018] FamCA 1015

FAMILY COURT OF AUSTRALIA

PITMAN & HYNES AND ANOR (NO. 2)

[2018] FamCA 1015

FAMILY LAW – CHILDREN – Interim – where there is a current child welfare order – where the mother seeks orders for time with the children and equal shared parental responsibility – where the father, the Department and the ICL seek orders for no contact with the mother and the father to have sole parental responsibility and a s 68B injunction order against the mother – where the Court gives weight to the expressed wishes of the teenage children – orders made in the best interests of the children effective from the expiration of the child welfare order for the father to have sole parental responsibility and for the children to communicate with the mother by telephone as they wish ‑ order made pursuant to s 68B.

Family Law Act 1975 (Cth) ss 60CC, 68B, 69ZK

Goode & Goode (2006) FLC 93-286
Banks & Banks (2015) FLC 93-637

APPLICANT:

Ms Pitman

RESPONDENT:

Mr Hynes

INTERVENOR:

Department of Child Safety, Youth And Women

FILE NUMBER:

WOC

772

2011

DATE DELIVERED:

5 December 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

27 November 2018

REPRESENTATION

THE APPLICANT APPEARED IN PERSON

THE RESPONDENT APPEARED IN PERSON

COUNSEL FOR THE INTERVENOR:

Mr J Linklater-Steele

INDEPENDENT CHILDREN’S LAWYER:

Mr D Carter
Carter Farquar Mediation & Family Law

Orders

That commencing upon the expiry of the current child welfare orders made by the Children’s Court of Queensland on 11 December 2017:
(a)The children, X born … 2003 and Y born … 2004 (“the children”) live with the father in the D Town area;
(b)The children shall spend no physical time with the mother;
(c)The children shall communicate with the mother strictly on the following terms:
(i)All telephone calls are to be initiated by the children (or one of them);
(ii)The father shall provide the children with the mother’s current mobile phone number;
(iii)The father shall ensure that the children’s mobile phone, when used to telephone the mother, shall not reveal the children’s telephone number (that is caller ID shall be disabled);
(iv)The father shall encourage the children to telephone the mother at least on Christmas Day, the mother’s birthday; Mother’s Day and the children’s birthday; and
(v)All telephone calls shall be unrecorded.
(d)The parents shall not discuss with, or in the presence of the children, these proceedings or other issues of adult conflict including the Children’s Court orders;
(e)Pursuant to s 68B of the Family Law Act 1975, and for the welfare of the children, the mother is restrained and an injunction issues restraining the mother from approaching the children at any time, including at their usual residence, at their school and when they are in public settings; and
(f)The father have sole parental responsibility for major long term issues of the children.
That pursuant to Rule 11.17 of the Family Law Rules 2004, these proceedings be transferred to the Family Court of Australia Sydney Registry.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pitman & Hynes and Anor (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: WOC 772 of 2011

Ms Pitman

Applicant

And

Mr Hynes

Respondent

REASONS FOR JUDGMENT

background

The parents of X (born in 2003 – now aged 15 years) and Y (born in 2004 - soon to turn 14 years), separated finally in 2011.
Despite some court proceedings in the 2011/12 period no orders were ultimately made when proceedings were discontinued in February 2012. A couple of years of relative calm passed before the mother felt the need to commence proceedings in the Federal Circuit Court of Australia in July 2014, seeking the children live with her; that she have sole parental responsibility and that the children spend supervised time with the father. The mother alleged incidents of significant family violence which the father denied.
After Judge Lapthorn made an interim order on 30 October 2014 for the children to live with the mother and spend supervised time with the father, arrangements were made (by the appointed Independent Children’s Lawyer (“ICL”)), for a psychiatric assessment by Dr E (after interviews in March 2015) and a family report by Mr F (after interviews in June 2015) to be prepared.
When the matter came before his Honour again on 18 June 2015, no doubt in view of the concerns raised by the two experts, an order was made for the mother to have sole parental responsibility and the applications were transferred to the Family Court of Australia. In this Court on 17 September 2015, a Registrar allocated the matter to the trial pool, awaiting hearing date.
Matters of concern came to the attention of the Department of Child Safety (“the Department”), in May 2016 which caused the Department to commence proceedings in the Children’s Court on the basis of their assessment that the children were in need of protection. The children were living with the mother at the time. There is no doubt that the mother regarded the actions of the Department as wrong, and she has vigorously contested further orders made in that jurisdiction including lodging appeals against various orders. Currently, she informs the Court, that she has a pending application in the High Court. The mother, although not legally represented, has the capacity to do research and is very articulate. She asserts that orders made have been in breach of State laws (including the apparent consent for the father to remove the children from Queensland). I tried to explain to the mother, as the transcript will reveal, that those concerns about the actions of the Department and/or the Children’s Court are not matters for me.
The intervention of the Department had a significant effect, in that:
a)further proceedings in this Court were effectively stayed, pending the determination of child welfare proceedings;
b)the children were placed in the care of the father on 9 September 2016, and shortly thereafter he travelled to his home in D Town, New South Wales with the children. The children have continued to live with the father (and attend local schools) since September 2016; and
c)the Children’s Court, after a 13 day contested hearing, made orders on 11 December 2017 granting the Chief Executive custody of both children for a period of 12 months.
Relevantly, the child welfare order expires on 10 December 2018. It is appropriate to note that during the Children’s Court proceedings, a further family assessment was conducted, as was a psychological report of the mother, by Dr G. Psychologist Dr G did, at paragraph 14 of his report released in August 2016, support a change of residence to the father because of his opinion that “the mother’s alienating behaviour is intrusive and controlling…”
At the interim hearing before me, the mother appeared by telephone, claiming in an email marked Exhibit 1 received at 8.24am on 27 November 2018, that she was unaware of the applications having been moved from 28 November 2018 to 27 November 2018. The Court records reveal that all parties were informed by email on 17 September 2018 of the change of date.
When a listed trial was vacated (because of the mother’s pending appeals) on 28 August 2018, the matter was listed for this interim hearing. The pending expiration of the child welfare order necessitated a determination under the Family Law Act 1975. The mother had indicated, she felt she still had the right to enforce earlier interim parenting orders made in 2014 and 2015. Although all parties were directed to file material, including in the mother’s case an amended Application setting out the orders sought on an interim and final basis, she did not do so. The mother said she could not file because she was waiting on some information from the ICL. Even if the mother was seeking information from the ICL, that did not prevent her from complying with the directions. Her failure to do so meant that it was not until she made her oral submissions (and the last person to address the Court), that the mother made the surprising concession that she was not seeking the children live with her on an interim basis. It may have been that her position changed after hearing submissions from the ICL Mr Carter; the Department represented by Mr Linklater-Steele of Counsel and the unrepresented father, all of whom proposed on an interim basis that:
a)the children live with the father;
b)the father have sole parental responsibility;
c)the children have no contact with the mother; and
d)that an order pursuant to s 68B be made, restraining the mother from contacting or approaching the children.
This concession by the mother based on her wish, she says, not to further traumatise the children and disrupt the schooling of the children, was properly made on the evidence, although untested, before the Court.
I need to do no more at this interim stage, to point to and rely upon:
a)what the children told Ms B, another family report writer who interviewed the children on 16 July 2018. Both children strongly expressed a wish to remain living with the father;
b)what the children are reported to have told New South Wales Departmental officers from Family and Community Services (“FACS”), who conducted nine home visits to the children’s home in D Town from 28 November 2016 to 29 August 2018. They consistently expressed a wish to live with their father; and
c)their satisfactory and happy attendance at school.
to be satisfied it is in the children’s best interests that they live with the father on an interim basis. It would be a concern to this Court that a change of residence (and schooling) would be, as the father describes “devastating”. Matters of risk to the children in either household are best left to a final hearing.
In the circumstances, these Reasons relate to what further interim orders should be made. In this regard, although the numerous earlier expert evidence might have some relevance at a final hearing, they do not significantly assist me now – save to note that at the time of Mr F’s report in 2015, the children refused to see the father and were very much aligned with the mother – and the reverse now appears to be the case identified by Ms B in her recent report.
It is that recent report that is most helpful to me, considering the ages of the children. I note the mother says little weight can be attached to the report, because of what she says is the father’s influence on the children and his actions in “alienating” the children from her. Those important issues are trial issues.
What all the earlier assessments manifestly demonstrate is that these children have been exposed to the parental conflict and the negative views of the parents, and want peace and stability. In this context, the views expressed by the children to Ms B are both insightful and concerning.
Y’s views and Ms B’s assessment can be found at paragraphs 54 to 67 as follows:
54.      Both children were unsmiling and appeared solemn upon arrival. They remained this way throughout the day. They both appear to have suppressed the detail of their lives with their mother, retaining only a memory of feeling generalized high level of tension and stress.
55.      [Y] is 13 years old. She said that school is going OK.
56.      She said that she was not happy about coming here today and that this dispute had been going on now for years.
57.      She said that it wasn’t a big shock to be placed with Dad. The Child Safety people had been talking to them for a long time and they expected that something was going to happen. She had anticipated that they would be placed in foster care and so it was much better that they were sent to live with Dad.
58.      She said that Mum had moved around a lot because she never had much money. In fact she was quite bad with money. She thinks that they were evicted from some of the houses. They were never hungry; there was always enough money for food. She said that they changed schools each time. They attended at least nine different schools. They missed some school attendance but she thinks that this didn’t affect them too much since primary school is not particularly difficult.
59.      She agreed that she had felt negatively about Dad before going to live with him. She thinks that people were telling lots of lies; Mum was saying things that weren’t true and the DOCS people were also doing this. She feels that they got caught up in the crossfire. She said that she doesn’t really care about this anymore. She just ‘stopped caring’ after a while.
60.      She said that it has been pretty good living with Dad. He is trustworthy and reliable.
61.      She said that Mum has been causing trouble by rocking up out-of-the-blue when she is not supposed to. The only thing that can make her go away is the Police. She said that she doesn’t want to interact with her because she can be nice and then, four seconds later, she turns ballistic. She has rocked up directly at their house. She yells and tries to get them to come outside to go in her car. When they don’t, she accuses Dad of locking them inside which is just stupid because the doors are not locked. Mum rocked up to their bus stop and that annoyed [X] and her as well as her other friends because she parked in the bus stop and the bus couldn’t park. When she moved her car, they still couldn’t get on the bus because the Police had arrived. They ended up being late for school. Mum has turned up at the bus stop a few times when they were going home from school, but they were able to avoid her ‘by being a bit sneaky’, and going to their friends’ houses instead. Mum often goes to a place across from the school and parks there and just waits for them. She showed me some photographs of Mum’s car at that place and at the bottom of the hill near their house. She feels annoyed and angry when she sees Mum’s car. She also gets a bit worried because Mum is so unpredictable, although she doesn’t believe that Mum would harm them physically.
62.      Mum has tried to talk to her twice. When Mum realized that she didn’t want to talk to her, she started talking to [X] instead. She feels that [X] is a ‘bigger target’ than she is.
63.      She said that they are always ‘on the lookout’ to see if she is nearby.
64.      If she could have her choice about living arrangements, she would want still to live with Dad. She is inclined to wonder whether Mum wouldn’t be so unpredictable if she was allowed to visit them. [Y] has ‘kinda given up on this’ however because Mum has ‘just made it suck for everyone involved and so I just don’t want to see her or think of her at all because it’s easier’.
65.      She says that her mother has always had more power over [X] than over her. She can manipulate him and make him feel guilty. She said that he is always the target and ‘I don’t cop it too bad’.
66.      She said that she and [X] are not particularly close. They have different sets of friends.
67.      She was definite about refusing to see her mother today. She was only prepared to consider it if this meant that the whole matter would finish.
X’s wishes and Ms B’s assessment are found at paragraphs 68 to 76 as follows:
68.      [X] is 14 years old. He said that he finds school pretty easy.
69.      He thinks that he had always been closer to Mum than [Y] was. He feels that she tried to pick favourites, which was hard for [Y]. He said that they used to move around fairly often when with Mum. They would change schools each time. At least, he has only been to two different High Schools.
70.      With Dad, he said, it has been ‘a lot more chilled out’ than when they were with Mum. It is just slower and not so stressed out. He said that they always lived pretty well with Mum but there was always an urgency and worry about everything.
71.      He said that Mum shows up at their house and their school sometimes. Sometimes she talks to them. Other times she just knocks on the door or sits in her car. It brings back that ‘sense of urgency’. It gets Dad on edge as well, ‘which sucks because everyone feels it then’.
72.      He thinks that Mum targets him more than [Y]. He thinks that this is because [Y] shuts down and ‘won’t be communicated with’.
73.      He doesn’t think that anything would improve if Mum were allowed to see them. It is impossible for Mum and Dad to hold a proper conversation without getting angry with each other. He thinks that a lot of it is Mum’s fault. He believes that she wants custody of them purely to spite Dad. He thinks that she would be unable to admit that this is the case.
74.      If he could choose his living arrangements, he would stay with Dad. It is less worry and things run smoothly. He thinks that Dad is more stable too. He has a house and a good job and he loves what he does. They can afford to live pretty well. Last time he saw Mum, she had all of her gear in the back of her car and he thinks that she doesn’t have anywhere to live. He thinks that she is not working because she spends all of her time writing up paperwork.
75.      He doesn’t want to see Mum at all. He went on ‘In order for Dad to stay the way that we need him to stay, we can’t have Mum. You can’t put those two together because they stuff up.’ He said that he is sad about this but, in the long run, he knows that this is best for him. He became silently tearful.
76.      Since speaking with [X], I have read the Transcript of conversation between [Ms Pitman], [Mr Hynes], [X] and [Y] provided by [Ms Pitman]. In my opinion, it illustrates a parent playing mind-games with a child, although I anticipate that [Ms Pitman] views it very differently.”
In summary, and relevantly, at paragraphs 81 to 87, Ms B opines:
81.      This assessment has focussed on the children’s present circumstances and wishes.
82.      It is my view that they have been gravely damaged emotionally as a result of the entrenched parental conflict to which they have been directly exposed for virtually as long as they can remember. Beyond this, they have been required to undertake several independent assessments.
83.      They have suppressed their memories of their past life with their mother, except for the residual recollection of stress and anxiety. They seek only peace and respite.
84.      Both children want to remain with their father. He can provide them with stability and routine. They want no contact whatsoever with their mother. They have both concluded that they will never have peace of mind otherwise.
85.      [Ms Pitman] has asked me to determine whether they are suffering from parental alienation, Stockholm syndrome and trauma bonding. I am not prepared to label their adjustment. Suffice to say, the children recognize that they can only survive emotionally through having solely one parent in their lives.
86.      I do not understand [Ms Pitman’s] desperation to continue this Court case or indeed any of the others that are presently on the books, so to speak. She speaks of seeking ‘justice’ for her children. Whatever objective she is striving to reach, her actions in continuing endless challenges are definitely achieving ongoing trauma for the children.
87.      I recommend that the children live with their father and that an Order for no contact with their mother is needed. In my opinion, [Mr Hynes] will need to have sole parental responsibility.

Whilst I accept that at a trial, when the witnesses are subject to cross examination, nuances often arise that put opinions into context, I am prepared to accept Ms B has correctly and accurately recorded the children’s feelings and those statements are clear and must be given weight, even on an interim basis (s 60CC(3)(a)).
I deal next with the further and additional interim orders sought, but before so doing, I provide the context that these applications will be transferred to the Family Court of Australia, Sydney Registry. The mother seeks that order; the father and ICL now agree and although the Department has some concerns about losing the accumulated knowledge of the history that Mr Carter (as the ICL) and the Department are likely to hold, I believe it is in the interests of both unrepresented parties with the children now living in New South Wales, that the proceedings be transferred to the Sydney Registry. I am not able to accurately predict when a final hearing in Sydney will occur, save to say it is not likely to be before the second half of 2019.
My discretion in any interim parenting decision is shaped by guidance given by the Full Court in Goode & Goode (2006) FLC 93-286 but also, in this case where the important remaining interim issues are narrow, the Full Court decision in Banks & Banks (2015) FLC 93-637 is helpful. As the mother said consistently, the best interests of the children is the paramount consideration.

parental responsibility

The current interim order made in 2015 when the children were living with the mother, was that she have sole parental responsibility. Since the Children’s Court orders made in 2016, the Chief Executive formally had parental responsibility. The father, as the primary carer since September 2016, has exercised day to day responsibility.
These parents are unable to communicate effectively now. Their parental relationship is toxic. Although the mother says she is not the problem when it comes to communication, I cannot allow the children’s best interests to be put at risk so far as a major long term issue is concerned, where the parents cannot communicate. With the children living with the father, he should have sole parental responsibility. It may provide some comfort to the mother that the father says the children will attend their current school into the future. Their current medical condition is not raised as an issue, and there are no faith issues.

Time with the mother

The mother articulated, finally, that she would like to spend time with the children on Y’s birthday. The mother will be in the area, it seems, as a Local Court appearance on that day is expected. She wishes the father to be ordered to encourage and support the children communicating with her by telephone and she would hope if they express a desire to see her, that their views would be respected and the father would do so.
The father is happy to provide the children with the mother’s mobile number and, as they have their own phones, he accepts they can ring their mother if they wish. Otherwise, he does not believe that any orders for the children to spend time with the mother should be made. The ICL and the Department, broadly, also accept the father’s position for no prescribed time. The access by telephone initiated by the children is not opposed by the ICL, however the Department has concerns that this opportunity may be abused by the mother to make adverse comments to the children about the father, which they might find difficult to cope with or manage. I am satisfied that provided the children ringing the mother does not achieve the mother knowing their mobile number (that is, the call by the children reveals to the mother “no caller ID” or similar), the children are of an age where if the mother says inappropriate things they are likely to simply hang up and not ring her again. Accordingly, I propose to make an order for telephone contact, initiated by the children. All calls will be unrecorded.
The current evidence makes it difficult to see how any further contact between the children and the mother could arise. The children, pending trial, should not be “under pressure” to see their mother if they do not wish to, in view of the history. It is of little comfort, I accept, that in not many years from now both children are to turn 18 and can, as adults, choose the relationship with each parent they then seek. However, the children currently are settled and enjoying school with their peers. Until the evidence can be fully and properly tested, I am not prepared to order the children spend time with the mother, contrary to the children’s wishes expressed to Ms B.
The difficulty, as I foresee it, with an order couched in terms about time occurring consistent with their wishes, is that these children might utter something to the mother in a telephone call which she construes (correctly or otherwise) as a wish to spend physical time with her. The mother would be likely, if the father says the children have said something different to him (perhaps more consistent with what they have told Ms B and FACS officers), feel compelled to bring an application. Although I am not prepared to make an order as sought by the father in his Response filed 7 November 2018 (namely that the mother “be recognised as a nuisance of the Court and have limitations placed on her in regards to her continual court appearances”), it is in the best interests of the children to make an order least likely to lead to further proceeding (s 60CC(3)(l). I accept that, depending on when a trial is listed, a circumstance could arise that prompts a material change in circumstances, in which case filing an Application in a Case to vary these orders, might be appropriate. I am not prepared to restrict that – noting that good and effective case management will deal with any abuse of the processes of this Court.

S 68B injunction

I am aware of the existence of a Temporary Apprehended Violence Order against the mother naming the father and the children as protected persons. Such orders are more easily enforced by State Police than a s 68B order.
However, the ICL and the Department support the father’s application for such an order, to reinforce the protection of the children from uninvited intrusions into their home life and school life. The father seeks an injunction issue restraining the mother from contacting the father and the children “including their workplace, residence, place of study and family”.
S 68B(1) provides as follows:
(1)      If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including
(a)      an injunction for the personal protection of the child; or
(b)      an injunction for the personal protection of:
(i)       a parent of the child; or
(ii)      a person with whom the child is to live under a parenting order; or
(iii)     a person with whom the child is to spend time under a parenting order; or
(iv)     a person with whom the child is to communicate under a parenting order; or
(v)      a person who has parental responsibility for the child; or
(c)      an injunction restraining a person from entering or remaining in:
(i)       a place of residence, employment or education of the child; or
(ii)      a specified area that contains a place of a kind referred to in subparagraph (i); or

(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or

(ii) a specified area that contains a place of a kind referred to in subparagraph (i).

I believe, on an interim basis, and taking into account the children’s expressed wishes, that I should make an order for the children’s welfare in terms of the order at the commencement of these Reasons. I have taken the view that the father is adequately protected by the current Apprehended Violence Order.

Current child welfare order

As required by s 69ZK of the Family Law Act 1975, the parenting orders I make, are expressed to commence from 11 December 2018, when the children are no longer under the care of the child welfare order.

Mediation

The mother urges the Court to order the father and herself to engage in family mediation. Her submissions included a desire that this “mediation” include the children. The Court is mindful of the benefits that can flow from parents engaging in genuine and meaningful negotiations through mediation. However, my assessment at this stage, is that mediation is unlikely to prove beneficial. The mother’s comments about the father during the interim hearing, were are times expressed with some anger and frustration. The history above reveals why the mother may feel the system has not protected her children from a father who she believes is an abuser. These issues are trial issues, however mediation at this time, with such emotions running so high, is not appropriate in my view.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 4 December 2018.

Associate:

Date: 5 December 2018