Pollands and Haberger (No. 2)

[2009] FamCA 281

FAMILY COURT OF AUSTRALIA

POLLANDS & HABERBER (NO. 2) [2009] FamCA 281

FAMILY LAW - CHILD ABUSE - Allegation
FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time - Best interests of the child

Family Law Act 1975 (Cth)

APPLICANT: Mr Pollands

RESPONDENT: Ms Haberger

FILE NUMBER: MLC 1581 of 2007

DATE DELIVERED: 18 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 18 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr C.C. Ham

SOLICITOR FOR THE APPLICANT: Madisons Lawyers

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Mr R. Allan

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Taylor Splatt & Partners

Orders

1. Until further order the children  T born … March 2002 and  K born … August 2003 live with the father.

2. Until further order the mother spend time and communicate with the children as follows:

   (a)on each alternate weekend from 10:00am Saturday to 4:00pm Sunday commencing 21 March 2009;

   (b)by telephone each Friday, Sunday and Tuesday between the hours of 6:00pm and 6:30pm; and

   (c)as may be otherwise agreed between the parties.

3. The mother attend upon a psychiatrist to be nominated by the Independent Children’s Lawyer for the purpose of an assessment and report with regard to all relevant issues related to the mother’s mental health in these proceedings.

4. The father meet the cost of the psychiatric report referred to in paragraph 3 hereof with any payment to be made by him prior to the psychiatrist meeting with the mother.

5. The mother do all things and sign all documents as may be reasonably necessary to comply with the requirement of her attendance upon the psychiatrist.

6. The mother and the father be and are hereby restrained as follows:

   (a)from critizing the other parent directly to the children or in the children’s presence or hearing;

   (b)from discussing parenting issues with the children or in their presence or hearing;

   (c)allowing the children to read or become aware of the contents of any document filed or produced under subpoena in these proceedings; and

   (d)acting in an aggressive or discourteous manner towards the other party in the presence of the children including but not limited to times of change over and communication for the purpose of these orders.

7. The change over point for all purposes of these orders be outside the N Police Station.

8. That pursuant to section 91B of the Family Law Act 1975 the Secretary of the Department of Human Services Victoria intervene in these proceedings.

9. The father forthwith request the children’s school to forward to the mother copies of the children’s school reports.

10. All applications be otherwise adjourned to the Registrar’s Procedural Hearing List at 10:00am on 28 May 2009 provided however that in the event that the psychiatric report required by these orders has not been released to the parties prior to that date the parties seek an administrative adjournment of the said date until a time after the release of the report.

11. At the said adjourned hearing consideration be given to insertion of the proceedings in the Less Adversarial Trial process and in particular consideration be give to whether it is appropriate in the circumstances that an Issues Assessment should be sought from the Family Consultant in accordance with the Child Responsive Model.

12. All questions of costs be reserved

13. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. 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 Pollands & Haberger is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1581 of 2007

MR POLLANDS

Applicant

And

MS HABERGER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These proceedings concern the children of the parties, T, born in March 2002, presently aged seven, and K, born in August 2003, aged five and a half.

2. Proceedings first came before me in the Judicial Duty List on 4 February 2009, on which date both the father and the Independent Children's Lawyer were represented by counsel and the mother represented herself.  I delivered reasons for judgment on that day on which I rely as part of these reasons for judgment. 

3. The essential issue concerned the question of whether the children who had lived with the mother for some years following the separation of the parties should remain living with her or whether they should be ordered to live, on an interim basis, with the father.  I ordered that they live with the father, commencing at 6 pm on that day, and that they spent time and communicate with the mother essentially each second weekend from Saturday morning to Sunday afternoon and also by telephone on each second day.

4. Specifically I adjourned the proceedings before myself today to enable the mother to file material so that she could respond to the matters put by the father as supported by the Independent Children's Lawyer.

5. My previous orders provided that they were to remain extant until this adjourned hearing or further order.  So at the conclusion of today's sitting unless I make another order there will be no order in place with regard to the children. 

6. The position of the parties at this hearing has been essentially the same as that at the previous hearing.  The mother seeks the return of the children to her care and the father seeks the retention of the children, effectively by way of extension of the orders which I previously made. 

7. In addition to that, the father seeks that the mother attend upon a psychiatrist for whom he is prepared to pay but to be nominated by the Independent Children's Lawyer for assessment and report.  There are a number of restraints sought against each party. 

8. While I have said that that's what the father seeks, and it is, the proposed minutes of orders were put to me by counsel for the Independent Children's Lawyer in those terms and with one or two small proposed additions is supported by the father in that view. 

9. My previous reasons for judgment referred to very significant matters of dysfunction with regard to the mother's parenting of the children.  The additional affidavit material, first of the mother filed today, is extensive and raises a number of factual issues.  However, while most of the relevant facts are put into issue by the mother by her own evidence there is no corroborative evidence, particularly from any independent witness, such as would cause me to be concerned with regard to the independent evidence. 

10. On the father's side there is extensive material from the Victoria Police with regard to their involvement with this family and particularly the mother.  That material has simply strengthened and corroborated the matters of concern which I expressed in my previous reasons for judgment.  The material refers to numerous reports of abuse and like matters allegedly by the father against one or both of the children which have been found by the police to be unsubstantiated.

11. The material refers to frequent discussions between members of the police force and members of the Department of Human Services of the State of Victoria with regard to this family and records members of the Department of Human Services as being of the same view as the Victoria Police with regard to the unsubstantiated nature of a large number of allegations made by the mother against the father in his conduct towards the children.

12. While it has not been an advantage to the mother I have had the advantage today of her appearing in person.  I have had the opportunity not only of hearing her oral submissions and reading her affidavit material but observing her affect and conduct in court.  Those observations completely confirm in my mind the evidence to which I previously referred with regard to the mother's conduct not as to the truth of the facts but as to her conduct with regard to criticisms of the father and her failure to substantiate them with evidence other than from her own mouth.

13. On a number of occasions during her oral submissions today she referred to having various witnesses.  While I understand that there has been a relatively short adjournment in this five or six week period there is no apparent effort been made in order to provide even affidavit material from those witnesses despite the fact that the mother has provided extensive affidavit material of her own.  Further, there is no independent evidence to rebut the material from the Department of Human Services or the Victoria Police force.

14. At this stage because of those facts I remain concerned with regard to the best interests of the subject children.  The legislation requires me first to consider the question of the presumption of joint parental responsibility.  In my view that is clearly rebuttable because of the best interests of the children.  However, neither party has specifically sought an order with respect to parental responsibility and I therefore do not find it necessary to make a specific finding on it.  However, were I called upon to make such a finding on an interim basis I would not hesitate to find that the presumption has been rebutted.  When I say that neither party has sought that, I rely on the minutes of orders of the Independent Children's Lawyer supported by counsel for the father on behalf of the father, which does not seek any order with respect to parental responsibility.  That is a matter for the ultimate trial of these proceedings.

15. I am persuaded on all of the material that in any event the mother's interim care of the children has very significant difficulties to it; and is supported by both the evidence to which I have referred in the matters today and the matters to which I referred in my earlier judgment.  In my view the mother's case has very significant difficulties in those regards and I am most concerned with regard to the question of the mother's possible emotional abuse of these children which on an interim basis seems to have more than a significant possibility. 

16. In my view on an interim basis that is the overwhelming concern and on that basis I could not contemplate it being in the children's best interests that the mother should have other than a relatively limited opportunity to have communication with the children both face to face and otherwise.

17. It gives me no pleasure to make that finding and I know that it is a matter which upsets the mother very greatly indeed.  But as I have explained to her, my task is not to make orders to suit her but rather to make orders which are in the best interests of the subject children.

18. Accordingly, I will order in accordance with the Independent Children's Lawyer's minutes that the children live with the father and that the mother spend time and communicate with them on each alternate weekend from 10 am Saturday to 4 pm Sunday, commencing on 21 March 2009 and otherwise spend time periods as mutually agreed and communicate with the children by telephone each Friday, Sunday and Tuesday between the hours of 6 pm and 6.30 pm.

19. I will otherwise order that the mother attend upon a psychiatrist to be nominated by the Independent Children's Lawyer for assessment and report with regard to all relevant questions relating to the mother's mental health.  I accept the suggestion by the Independent Children's Lawyer supported by the father that the father meet the costs of that psychiatric report.  I accept that the father's financial position is more disposed towards being able to do that than is the mother's and in those circumstances that will take place.

20. The restraints which are sought will not include a restraint of the mother "allowing others to engage in behaviour prohibited by this order".  That is not within the mother's capacity.  It is accordingly inappropriate that that order be made.  Otherwise, the restraints against criticism, discussing issues and allowing the children to read relevant material in these proceedings together with acting in an aggressive manner will be made.  Those restraints will be directed appropriately to both parties.

21. The proceedings will otherwise be adjourned to the Registrar's Procedural Hearing List at 10 am on 28 May 2009 for the making of such orders and directions as may be necessary to insert it into that case management process of the court.  Consideration will need to be given at that time to whether it is appropriate that an Issues Assessment be prepared, given that there will be a psychiatric assessment.  In the event that the psychiatric assessment has not been prepared the parties should make application for an administrative adjournment of the Registrar's hearing to sometime after the release of the psychiatric report to which I have already referred.  It will then be a matter for the Registrar as to the case management processes which are to be followed.

22. I will make an order inviting the officer in charge of the Department of Human Services of the State of Victoria to intervene in the proceedings and require the father to request the children's school to forward to the mother copies of the children's school reports. 

23. There are two outstanding matters in the meantime.  The first of those concerns paragraph 7 of an order made on 23 January 2009 requiring the mother to provide to the solicitors for the father a list of all the names of psychiatrists, psychologists, counsellors and other treating health professionals who she may have consulted since 1 January 2006 to date and continuing.

24. I am asked for an order that the mother comply with that order.  In my view an order requiring somebody to comply with an extant order of the court is contrary to public policy.  The order is already there and the mother is required to comply with it.  In the event that she does not comply with it an appropriate course might be taken.  I do not see it as being necessary to be complied with prior to the psychiatrist being involved in the reporting process to which I have referred and accordingly, I decline to make that order.

25. Secondly, there has been a significant amount of dispute as to the handover point for the purpose of these orders.  The father, through counsel, sought that that handover point should be at the C Train Station or even the C Police Station, which is approximately halfway between N, where the mother lives, and V, where the father lives. 

26. On the mother's part it is urged that that should be at the N Police Station where handovers have taken place.  The father seeks that the mother do some of the transport.  I am persuaded to the appropriate standard that the mother does not have a car of her own and is dependent on friends.  In those circumstances it is an inappropriate burden to place on a third party to enable the mother to see her children and in any event it is only once a fortnight.

27. In those circumstances I decline the submission that the changeover point should be at C.  I am very strongly opposed in general to changeovers taken place at a police station but I regard this as being an exception.  However, the changeover should not take place inside the police station but rather outside it.  The place for changeover will be outside the N Police Station.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate:     

Date:  17 April 2009