Potter and Ross & Anor

[2012] FamCA 31

FAMILY COURT OF AUSTRALIA

POTTER & ROSS AND ANOR [2012] FamCA 31

FAMILY LAW – CHILDREN – interim application – where there is a long history of conflict and litigation between the parents – where final parenting orders were made by consent in September 2008 – where the matter has been relisted for trial – where the mother has withheld the child from the father citing concerns for his physical and emotional wellbeing – where the child has not seen his father in 14 months – where the child has repeatedly expressed a desire not to see his father – whether the child should spend time with the father – where the father has stated he will not avail himself of time with his son if such time is to be supervised – where it is not in the child’s best interests to spend time with the father unsupervised – where an order for supervised time not in the child’s best interests given the father’s indication that he will not avail himself of such time – where order made for no contact between the father and child pending the trial.

FAMILY LAW – CHILDREN – interim application – where there is a long history of conflict and litigation between the parents – where final parenting orders were made by consent in September 2008 – where the matter has been relisted for trial – where the father claims the child is at risk of harm by the mother’s new partner – where the father has previously withheld the child based on this claim – where the Queensland Police Service and the Department of Communities (Child Safety) have investigated the allegations – where no charges have been laid and the Department has determined the allegations are unsubstantiated – where each party seeks interim orders that contact between the child and the other parent be supervised – whether contact between the child and either party should be supervised – where orders made in accordance with original consent orders for unsupervised time.

Evidence Act 1977 (Qld)
Family Law Act 1975 (Cth)

Family Law Regulations 1984 (Cth)

Family Law Rules 2004 (Cth)

Goode & Goode (2006) FLC 93-286
M v M (1988) 166 CLR 69

APPLICANT: Mr Potter

1^st RESPONDENT: Ms Ross

2^nd RESPONDENT: Ms Wilson

INDEPENDENT CHILDREN’S LAWYER: Mr Dodd

FILE NUMBER: BRC 48 of 2007

DATE DELIVERED: 3 February 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 25 January 2012

REPRESENTATION

THE APPLICANT: Self-Represented

THE 1^ST RESPONDENT: Self-Represented

THE 2^ND RESPONDENT: Self-Represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jones McCarthy Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

In respect of N Potter (“N”), born … June 2000:

1. The Application for interim orders by the father be dismissed.

2. All previous orders with respect to parental responsibility for N are discharged.

3. The mother shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (Cth) (as amended) (“the Act”)) in respect of N.

4. All previous orders with respect to the father spending time and communicating with N are discharged.

5. The father shall spend no time, nor communicate with N.

6. The mother shall:

   (a)Advise the father and keep him advised of N’s residential address, school, usual treating general practitioner, any specialist medical practitioner and any counsellor or therapist upon whom he attends; and

   (b)Notify the father as soon as reasonably practicable of any significant injury or serious illness suffered by N and, in any event, any injury or illness which requires specialist medical treatment or admission to hospital.

In respect of Y Potter (“Y”), born … June 2005:

1. The Application by the father and the Response by the mother seeking interim orders each be dismissed.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

NOTATION

A.For the purposes of clarity for the self-represented parents of Y, it is noted that the Orders made by consent on 3 September 2008 shall continue, until further order, in full force and effect pending the outcome of the trial.

B.These Orders are in addition to, and should be read in conjunction with, Orders made by Justice Murphy on 25 January 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Potter & Ross and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 48 of 2007

Mr Potter

Applicant

And

Ms Ross

1^st Respondent

And

Ms Wilson

2^nd Respondent

REASONS FOR JUDGMENT

1. These proceedings are a yet further intrusion into the lives of two young children, Y Potter (“Y”) born in June 2005 and N Potter (“N”) born in June 2000.

2. Y and N have different mothers, Ms Ross (1^st Respondent) and Ms Wilson (2^nd Respondent) respectively.

3. The current interim proceedings with respect to Y relate to an application by the father that Y live with him and have supervised time with his mother. In the interim, Ms Ross seeks an order that time between Y and his father be supervised.  

4. The father has also applied for final and interim relief in respect of N. N’s mother has responded and the final and interim orders proposed by her seek to prevent the father from having any contact with N:

   Final Orders sought:

   1.That the Father [Mr Potter] have no contact physically or by phone with his son [N].

   2.That [N] will be able to communicate with his father [Mr Potter] supervised for his safety by a third organisation but only when he feels that he wants to.

   3.That the father [Mr Potter] is not to come within 50 metres of [N] at any time.

   Interim Orders sought:

   1.That the father [Mr Potter] has no contact with [N] during the course of time whilst seeking final orders due to risk of Emotional and Physical abuse.

5. The father seeks a return to orders made by consent with Ms Wilson in September 2008.  Those orders saw N living with his mother and spending time with his father, on a graduated basis, and ultimately unsupervised five nights per fortnight and half of the school holidays.

6. Notwithstanding the fact that Ms Wilson’s proposed interim and final orders seek no contact between N and his father, during the hearing Ms Wilson said that she would “respect” an order for time between N and his father on an interim basis provided such time was supervised.

7. However, Mr Potter says that if the Court intends making orders whereby his time with N is supervised, he will not, under any circumstances, avail himself of that time. He says “that is a measure that is taken usually for people who have been in jail for a long period of time. I am in no way an inmate in jail”, and he says he will not be treated in a similar manner. Accordingly, if the Court is minded to accept Ms Wilson’s proposal that, on an interim basis, N should continue to live with his mother and time with the father, if ordered, be supervised, further consideration of any application by the father becomes moot.

8. Each of the parties represents themselves. The Court was assisted by an Independent Children’s Lawyer, Mr Dodd, who had been appointed as a result of earlier orders made by me relating to Y. During the course of proceedings, without objection from any of the parties, I made an order appointing Mr Dodd as the Independent Children’s Lawyer for N in respect of further proceedings involving N. The reasons for appointing him (to the extent they are not otherwise obvious) emerged from the discussion between myself, Mr Dodd and each of the parties during the course of the hearing.

9. Each of the parties has represented themselves in proceedings before this Court for some time. Each acknowledged that they are wholly familiar with the proceedings of this Court and, importantly, the distinction between interim and final relief and the principles applicable to the former, including, importantly, the fact that proceedings are truncated and orders are made by reference to admitted facts or facts about which there can be little doubt and the like. Moreover, as was made plain to each of the parties, the Court is unable to make factual findings about what, in this case, are the plethora of factual allegations and counter-allegations made by each of the parties with respect to the conduct of the other (and, in the case of Ms Ross, her current partner) toward their respective children. No doubt those matters will be central to any further trial of those issues.

10. As earlier referred to, final parenting orders were made by consent between Mr Potter and each of Ms Ross and Ms Wilson in September 2008. Neither Mr Dodd nor any of the parties contend other than that there have been significant changes since those orders were made so as to necessitate this Court dealing with those changed circumstances in subsequent parenting proceedings. In that vein, a report prepared by Ms B pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”) on 20 December 2011 indicates that, in her opinion, circumstances have changed so as to necessitate the hearing of further parenting applications.

11. On 9 November 2011, I made orders and delivered ex tempore reasons in respect of an application for a recovery order brought by Y’s mother. Mr Potter had retained Y, making allegations against Ms Ross’ new partner, Mr S, based on alleged disclosures made by Y that Mr S had been violent towards him.

12. On that date, I adjourned the hearing of interim parenting applications to the current hearing and ordered Y’s return to his mother’s care. Mr Dodd was appointed by those orders. I also specifically requested that the Director-General of the Department of Communities (Child Safety Services) (“the Department”) regard my orders of that date as a notification by the Court with respect to Y and that such investigations as might be considered appropriate by that Department be undertaken. In addition I requested that a report pursuant to s 69ZW of the Act be prepared. That report has been received. Its contents are unsurprising given what I described in my reasons given on 9 November 2011 as the “internecine disputes” between the various parental groupings involved in the care of these two children (and a further sibling J, who is the son of Ms Ross and her former partner, Mr Olsen).

13. It goes without saying that I am aware that the mandatory considerations relevant to determining children’s best interests are as applicable to interim proceedings as they are to final proceedings notwithstanding the significantly curtailed nature of the former (see e.g. Goode & Goode (2006) FLC 93-286).

14. It is necessary, I think, for the purposes of these proceedings, to refer to matters dealt with in the earlier ex tempore reasons given on 9 November 2011; it is clear that issues at the centre of these proceedings were also relevant to the orders made on that date, and, in particular, the central order returning Y to his mother’s care.

15. First, as I said earlier in these reasons, it must be observed that the current proceedings represent yet further litigation in the lives of these two young children. As I also outlined earlier, the previous history of this matter involved two mothers (Ms Wilson and Ms Ross) and three children (N, Y and J). Mr Potter is the father of N with Ms Wilson and the father of Y with Ms Ross. J is the child of Ms Ross and her former partner, Mr Olsen. The 2008 proceedings also involved Ms Wilson, Mr Potter, Ms Ross, Mr Olsen and J’s paternal grandparents.

16. I pointed out that those proceedings, now heard over three years ago, and which ultimately resulted in consent orders after five days of hearing, involved, almost axiomatically it would be thought, a number of the matters that go to the heart of the considerations mandated by s 60CC of the Act. Of course, not the least of those matters was the capacity for each of the parents to provide for all of the needs of their children. So, too, even then, the risk of harm to the children was very much a live issue, as it is in these proceedings. It goes without saying that, whether expressed as a primary consideration or as something plainly fundamental to the exercise of discretion with respect to parenting orders by a court charged with a responsibility to children, the issue of risk of harm (of whatever type) to a child, is paramount among those matters to be taken into account in arriving at a decision about best interests.

17. I quoted in those earlier reasons a passage from Ms M’s report prepared now some time ago. Notwithstanding the lapse of time, it is in my view, important to yet again quote that passage:

    110.Although there have been significant twists and turns in this complicated matter, some essential facts remain clear.  Firstly, these children have continued to be exposed to conflict, turmoil and disruption.  The children have also been exposed to domestic violence – particularly to the emotional abuse of this violence.  There seems to have been little peace for these 3 children since the last report.  Secondly, the shifting allegiances amongst the adults and the dynamics of the adult relationships remain a significant factor.  Thirdly, the adults have demonstrated an inability to work together and an inability to effectively share parental responsibility.

18. I repeat “there seems to have been little peace for these 3 children since the last report”. Tragically, Ms M was speaking in 2008. Her words have, if anything, greater resonance for the proceedings currently before me. It can hardly be doubted that parenting proceedings existing over a very lengthy period of time would have at their heart, among other things, significant and profound conflict between the parents (and other significant people in their lives). Such pervasive conflict invariably has a profound and ongoing adverse impact upon the children. That is what Ms M was referring to in 2008 and it has even greater significance now.

19. It is precisely because of those sorts of considerations, in my view, that the legislature has seen fit to enact Division 12A of the Act and, specifically, s 69ZN (see, as a particular example, the “First Principle” enshrined in s 69ZN(3) of the Act). As has been pointed out to these parties on many occasions, the principles enshrined in the legislation (both in this section and more generally) are given further force by the Act stipulating a number of mandatory duties with which the Court must comply.

20. So that it is clear in these short reasons, I record that directly relevant to the issues to be determined by me on an interim basis is the primary consideration of the need to protect the relevant children from any physical or psychological harm whilst concomitantly taking account of the benefit to the children in having a meaningful relationship with each of their parents as is revealed by the evidence and the circumstances of the case.

21. Moreover, as will, I think, be clear already from the very broad outline given, the nature of the relationship between each of the children and each of their respective parents; the capacity for each of the parents to provide for their child’s needs and, in particular, their psychological and emotional needs; the likely effect of any changes in their respective circumstances; and, the maturity of each of their respective parents (and their partners), are highly relevant considerations to the determination of Y and N’s best interests.

22. At least one of the catalysts for the current applications and the circumstances which underpin them is the fact that Y came into the care of the father on 21 October 2011 and, contrary to the orders made 30 September 2008, Mr Potter retained him. Thereafter the father removed Y from school for a period of about two weeks, only returning him shortly prior to the hearing before me on 9 November 2011. His stated reason was that he was concerned that if Y was returned to school, his mother would remove him and prevent contact.

23. Mr Potter alleges a significant risk of harm to Y if he is to remain in his mother’s household. He says that the mother’s current partner, Mr S, represents a significant risk to Y by reason of what Y reports as physical harm having been perpetrated upon him by Mr S. Necessarily, the father alleges that the mother would fail to protect Y from that harm.

24. The evidence before me revealed that in respect of the alleged harm:

    ·The allegations are wholly dependent upon the hearsay report of comments made by a child who is six.

    ·These allegations formed the basis of a report to the police. Evidence examined by the Independent Children’s Lawyer reveals that Y gave a statement pursuant to s 93A of the Evidence Act 1977 (Qld) in which some disclosures of harm (namely that Mr S “punches” him and “pulls” his ears) were made. However the police report reveals that there were no dates, times or other particulars in relation to those allegations and after 20 minutes the interview was terminated. The police records reveal an ultimate opinion that it was “highly unlikely that a prosecution for assault” would succeed, in particular there was a suggestion that s 280 of the Criminal Code 1899 (Qld) (domestic discipline) might, in any event, provide a defence.

    ·Evidence from the Department file refers to a “number of vexatious complaints” being made with respect to Y and that this particular complaint “appeared vexatious”, being made in the context of parenting disputes.

    ·The documents reveal that Mr S has no previous criminal convictions in Queensland.

    ·No further investigation will be undertaken by either the Department or the Queensland Police Service with respect to Y. The Department has determined that the complaint is “unsubstantiated”.

    ·Mr Dodd tendered a diary note of a telephone conversation he had with Y’s principal, Mr W, regarding any disclosures made by Y to his teachers. The diary note, to the extent that it records what Mr W was told by each of the relevant teachers, is plainly hearsay but is admissible pursuant to s 69ZT(1)(c) of the Act. I am inclined, in the circumstances, to attach significant weight to the fact that none of Y’s teachers reported any disclosures being made by Y.

    ·There is no independent medical evidence in respect of any of the allegations.

    ·There is no evidence that the father took Y to a medical practitioner (although he did take Y to a psychologist, Ms Z).

    ·Y repeated a statement to Ms Z said to have been made to his father about harm perpetrated by Mr S. Ms Z records that the statement was made “in the first moments of [the] session…”. No doubt cross-examination will ensue at the trial with respect to what might be made of an apparently spontaneous disclosure made by a child of this age within moments of the first session with a psychologist in the context of the litigation history evident here.

25. Further, the allegations are made in the context of assertions and counter-assertions made by the father and Ms Ross that the other has coached the child to make statements against them. Mr Dodd, the Independent Children’s Lawyer, points in that respect to the affidavit evidence of Ms Ross and an alleged “disclosure” revealed by Y and the manner in which that disclosure is made. For example, while noting that no cross-examination has yet occurred, it is difficult to see how the questions could be described as anything other than leading.

26. In my ex tempore reasons of 9 November 2011 I dealt seriatim with the assertions by the father as to what Y had said to him (at [30] – [41]). It will be seen that those paragraphs also refer to the father contacting the Department and making a “formal assault complaint to the [local] Police”. The material revealed by each of the Department and Queensland Police Service has already been referred to.

1. On the last occasion I took the unusual step of requiring Mr S (who was present in court) to give sworn evidence in the witness box and for Ms Ross to do the same. Their evidence, in so far as it is relevant to the present proceedings, was addressed in my ex tempore reasons at [25] – [64].

2. The issue in these proceedings pertain to the orders that might apply between now and the trial of this action which is likely to take place in some six or seven months’ time. The issue is not whether particular behaviour is or is not established (which, in any event, is not the issue – see the decision of the High Court in M v M (1988) 166 CLR 69). Rather, the Court’s task is to arrive at a conclusion based on the admittedly unsatisfactory nature of the proceedings necessary on an interim basis. It is of note that the current allegations are but yet another example in a plethora of allegations and counter-allegations made by these parties as against the other over a period of some years. Similarly, it ought be noted that the current parenting arrangements have been in place as a result of consent orders for over three years. The Independent Children’s Lawyer submits that if those arrangements are to be changed, then a good case should be made out on the evidence before the Court.

3. I do not consider that any such case is made out on an interim basis in respect of Y; I am not prepared to find on an interim basis, that Y is at unacceptable risk of harm in the care of the mother and Mr S.

4. It is by no means clear to me what basis is said by Ms Ross to found an order that longstanding care arrangements should be changed in respect to Y on an interim basis.

5. I repeat what I said in my earlier ex tempore reasons, namely that, notwithstanding unilateral actions on the part of the father on 21 October 2011, it seems to me on all of the evidence before me (bearing in mind the constraints applicable to these interim proceedings) that Y enjoys a close and appropriate relationship with his father. There is sufficient evidence before me to suggest that there is benefit for Y in enjoying a meaningful relationship with his father and that concomitantly the cessation or truncation of that relationship has the potential to be detrimental for Y.

6. In addition, and a fact which in my view cannot be ignored, is that in the intervening six or seven months between now and a trial, there will be a report prepared pursuant to s 62G of the Act and the investigation inherent in that report as it were, hangs over the heads of all parties concerned. So, too, the Independent Children’s Lawyer is involved, which operates similarly.

7. The father has not seen N since December 2010; at that time, the mother withheld N based on fears expressed by him regarding his father. The mother’s actions in withholding N can be seen to have a lengthy forensic history. As the self-represented mother points out, N’s leg was broken by the father when he was a tiny child. Ms M describes this event, in a report dated October 2007, in the following manner:

   53.[N] was 6 weeks old when a pivotal event occurred on 22.8.2000…

   54.…Hospital records show [N] was admitted on 22.8.2000 with a fractured right femur. He was put in traction. [Ms Wilson] claims she visited daily and [the father] visted rarely. [The father]] claims he regularly spent time with [N] in hospital. The records show [the father] contacted the Child Protection Unit and admitted pulling [N] by the leg whilst [Ms Wilson] was holding [N]. [The father] expressed remorse. He also reported previously smacking [N] on the bottom and said the bruise on [N’s] cheek was caused by “play biting”. The report from the Clinical Manager of the Child Protection Unit refers to [Ms Wilson] as isolated and having few social networks in Perth. This report also refers to [the father] feeling it was important to have control over his life but having been unsettled and unable to manage his feelings since [N’s] arrival. There is reference to [the father] feeling “intolerable frustration and irritability when [N] cried or would not feed.” [The father] admitted having previously smacked [N].

   55.[The father] now states that he realised that someone would be charged. He claims that he did not want to see a baby removed from his mother and so he confessed. He thought his confession would lead to someone coming to help them care for [N]. [The father] is critical of the response from WA Dept Family and Children’s Services. He was angry that he was treated like a criminal and asserts that the Departmental focus was not on fixing the family but on removing him.

   56.WA Police records show [the father] was charged on 29.8.2000. He entered a plea of guilty on […].10.2000. Perth Court ordered an 18 month intensive supervision order.

   …

8. I have already referred to the fact that the father will not avail himself of supervised time if it is to be ordered. It might be noted that this is his position despite the fact that he has not seen N now (outside of an interview context) for some 14 months or so. I specifically put to the father that if the facts and circumstances pertaining to his relationship are as he contends them to be, it might be that supervision will provide some forensic assistance to him by reason of having the potential to provide evidence of a relationship between he and the child different to that contended by the mother and, indeed, different to the observations made by Ms B for the purposes of her s 65L report.

9. In that respect, it ought be observed that N is now 11 years old and approaching an age when his views can be seen to have increasing importance within the scheme of considerations necessary to be examined by the Court. Despite this, the father remained adamant that he would not avail himself of supervised time.

10. In that context, it is important to mention Ms B’s observations of N’s relationship with, and attitude to his father, and to record what N said to her:

    31.…[N] told me that he was “nervous” about seeing his father today and did not want to see him, “because he sometimes gets really, really angry. He hurts [Y] a lot. He just scares me so I really don’t want to see him”…

    32.[N]…describe[ed] [the father] as “mean, scary; he gets really angry, he swears a lot; he can’t control himself when he hits [Y].” [N’s] words tumbled out: “I saw him smack [Y] like nine times on the bum. He pushed him down on the – he stared  crying. He gets really angry at [Y]”…

    …

    35.…[N] thought that during supervision his father had “acted differently so he could see me alone”.

    36.[N] initially agreed to see [Y] but refused to see his father, however after [N] saw that his father had left a bag of gifts for him in my office, I was able to persuade him to see [the father] “for five minutes” to thank his father and to open the gifts in front of him…[N] remained subdued even whilst he opened the gifts, which he seemed to like…

    …

    40.As we concluded the brief session [the father] asked [N] if he was “coming to see Dad and [Y] for Christmas” and [N] looked uncomfortable, shrugged and said “I don’t know.” When his father said “I love you” [N] remained silent and did not respond as he stood at the door.

    41.I then briefly reinterviewed [N], who said that the session was “a little bit” alright but “not really”. [N] said that he expected his father to “get angrier at [Y] when he was doing stuff” and that if I had not been there [the father] would “yell at him, sit him in the corner and smack him”. [N] conceded that it was “a little bit” okay to see his father with someone there but only for a short duration and he was adamant that he did not want any further time with his father that day or on another day. [N] added that at this brief session his father “was acting probably the best I’ve even seen him…he’s only good when he’s around other people, not when there’s no other people around.” [N] told me that when his father asked about seeing him at Christmas he was worried about saying ‘no’ because he thought [the father] “might get a bit angry.” [N] was firm in wanting me to tell the Judge that he did not want to see his father.  

    [Bold in original]

11. Given N’s age, the observations of Ms B, and the nature of the relationship between the father and N observed by her, which includes the fact that there has been no time spent between the two now for 14 months, I would not be inclined towards unsupervised time between N and the father.

12. Contrary to what the father asserts, supervised time is by no means confined to circumstances in which a party “is in jail” or has been convicted of criminal offences. As I attempted to explain to the father, it has many uses within parenting proceedings, not the least as a means of reassuring a child who has been separated from a party for a considerable period of time and as a means, incidentally, of availing the Court of evidence independent of the parties of the nature of the relationship between the two, garnered over time.

13. If I was to order supervised time, in light of the father’s implacable refusal to take it up, there exists the possibility of further conflict and disruption to the child resulting from a position held now which might alter between now and trial. That is, the father may seek to avail himself of an order for supervised time after a significant period of no time in circumstances where N has become adjusted to the fact that there is no time.

14. Accordingly, I propose to make an order on an interim basis, that there be no time between N and his father. I make it plain that this order is expressed to be until further order and does not preclude the issue of parenting orders with respect to N, being live at the trial. I canvassed with the parties whether, in light of my previous involvement of the matter I should recuse myself from further involvement with the matter. None of the parties suggested that should occur. Mr Dodd submitted that because of my familiarity with the matter, gained over a lengthy period of time, there would be significant expedition in my hearing the matter, particularly when regard is had to the mandatory principles contained in s 69ZN of the Act. I think there is substance in that submission.

15. In a similar vein, Mr Dodd admits that Ms M, who prepared a report now some three years ago should, if at all possible, prepare the s 62G report to which I have earlier made reference. Ms M is currently a Family Consultant employed by this Court. Again, none of the parties objected to that course of action. Mr Dodd submitted there was some significant advantage to the Court in Ms M undertaking the report as it might provide a “longitudinal view” of the children and their circumstances, given that on the last occasion when she was involved with the family, they were younger and at a different developmental stage to which they are now. Again, I consider that there is significant merit in that submission and I propose to order accordingly. For those reasons, I will make orders to the effect that the existing orders with respect to Y remain in place, and that the orders with respect to N be varied so as to provide that there be no time between N and his father pending the trial.

16. I order accordingly.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 3 February 2012.

Associate:     

Date:  3 February 2012