Prendergast and Parsons (No. 10)

[2007] FamCA 1157

FAMILY COURT OF AUSTRALIA

PRENDERGAST & PARSONS (NO. 10) [2007] FamCA 1157

FAMILY LAW – CHILDREN – Order made at the conclusion of a long trial that, until further order, the husband’s time spent with his 7 year old daughter be suspended – Given his falsely held encapsulated belief as to the wife’s mental condition there was an unacceptable risk to the child’s welfare pending judgment

Family Law Act 1975 (Cth)

Prendergast & Parsons [2007] FamCA 538
Jones & Dunkel (1959) 101 CLR 298
Goode & Goode [2006] FamCA 1346

APPLICANT: Mr Prendergast

RESPONDENT: Ms Parsons

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 764 of 2004

DATE DELIVERED: 21 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 21 September 2007

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Eidelson

SOLICITOR FOR THE RESPONDENT: Berry Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Brewer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robert Halliday & Associates

Orders

1. That until further order paragraphs 2 and 3 of the Orders made by the Honourable Justice Watt on 21 January 2005 be suspended.

2. That the ex tempore judgment delivered this day be transcribed, placed on the court file and made available to the parties.

IT IS CERTIFIED

(2) That 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 Prendergast & Parsons is approved pursuant to s 121(9)(g)of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 764 of 2004

MR PRENDERGAST  

Applicant

And

MS PARSONS  

Respondent

REASONS FOR JUDGMENT

1. Upon the completion of his address late in the afternoon of 20 September 2007, Mr Eidelson made oral application that the husband's time spent with the child, born in February 2000, be suspended particularly in the light of my indication that I propose to reserve my judgment in the proceedings.  That application was strongly supported by Mr Brewer, but opposed by the husband. 

2. Mr Eidelson reminded me that, given the course of events during the trial of the proceedings the wife had earlier made application on 10 September 2007 to suspend contact on 10 September 2007 which, following discussion, was adjourned to be brought on if considered appropriate to do so.

3. I have heard all the evidence in the proceedings, and in particular the very compelling evidence of Dr E, psychiatrist, Mr P, clinical psychologist, and Ms K, the Family Consultant.  Furthermore, I have received persuasive evidence from Ms Y, the principal of the primary school attended by the child. 

4. Following adjournment of the proceedings from March 2007, I ordered on 18 May 2007 that each party attend upon Dr E for a psychiatric assessment.  This the wife did, but not the husband.  My reasons for ordering such an assessment are clearly set out in my judgment of 18 May 2007 (Prendergast & Parsons [2007] FamCA 538) and I incorporate the same into my reasons this afternoon.

5. Furthermore, in July 2007, the child sought to talk to the Independent Children's Lawyer who, having done so, recommended a "rest" from time spent with her father, which in fact was undertaken.  The Independent Children's Lawyer subsequently tendered notes of that interview, the contents of which have raised real concerns with me.  The husband was most critical of the wife and the Independent Children's Lawyer for what happened, viewing it as a serious contravention.  His lack of insight into the conditions that led to the recommendation was quite breathtaking.  He saw it through his own eyes, not those of his daughter. 

6. It was upon the resumption of the proceedings that I received evidence from the wife who was cross-examined by the husband.  In bold contrast to that of the husband, I found her to be a credible witness and one upon whom I could safely rely.  Even at this stage, it is appropriate for me to say she was insightful and very much in harmony with the best interests of the child.  The evidence given upon the resumption of the trial revealed, in a compelling way, an inexorable increase in the child's anxiety levels, her lack of confidence and diminishing sense of wellbeing which was starkly painted by the school Principal in her evidence before me.

7. The evidence I heard concerning the physical condition of the child when delivered to school from the care of the husband was alarming.  It revealed, as I now see it, a fundamental failure on his part to care for her physical needs and a patent inability to understand its impact upon her sense of wellbeing and self‑worth amidst her own group of peers.  It was the wife who was obliged to be at school on delivery of the child to rectify this quite untenable situation. 

8. I have heard very compelling evidence from Dr E.  Despite the husband's inviolable and deeply etched views of the wife as an abusive, psychiatrically disturbed parent, Dr E found quite to the contrary.  The fact that the husband failed to submit himself to the assessment is one of real concern to me, given the whole of the evidence, and one from which it is open for me to draw an adverse inference in accordance with the principles clearly laid down in Jones & Dunkel (1959) 101 CLR 298. The evidence of Dr E, when referencing certain parts of the husband's trial affidavit and his various closely typed letters of condemnation of those who spoke in favour of the wife and not of him, also caused uneasiness as to the husband's mental health and the issue of him hiding his views of the wife from his daughter, particularly at this highly stressful time in the proceedings.

9. As matters presently stand, I am sufficiently concerned to suspend the husband's time spent with the child until further order and a detailed assessment by me of all the evidence, including that of Mr P.  I also bring into account my overall view, as matters thus stand, of the penetrating evidence of Ms K.  When I stand back at this time and reflect upon all of the evidence, I am left with the very strong impression that there is an unacceptable risk, even at this stage of the proceedings, for the child to spend time with her father.  This does not mean that, in the fullness of time when I have considered all the evidence, I may not be of the view that the time he is to spend with the child ought not be revived.  However, until then and given what I perceive as the persuasive evidence of the expert witnesses and Ms Y, I am not prepared to take that risk.

10. The husband's attitude to the wife is quite diabolical.  He perceives her as the enemy, a mother who is grossly psychiatrically disturbed.  He maintains an inviolable view that she is and has been an abusive parent.  His influence upon his own father, his sister and his neighbour, Ms D, has been such that they blindly fell into line with what appears to me to be his distorted ideation.  Their evidence was most unimpressive, to put it mildly at this stage.  They were witnesses upon whom I cannot rely.  I am satisfied that even at this stage they were biased and prejudiced.  They were unconvincing. 

11. I appreciate that this application has been made late in the proceedings, but in reality, it is simply brought on in furtherance from my earlier decision.  The husband has been on notice.  When I sought his response, he requested that the application be “in writing”, acknowledging that it was “serious."  I will not do as he requested, for he has had the advantage of being present for the whole of the trial.  In the circumstances, I propose to suspend his time spent with the child until further order.  I would hope to have my final judgment in the proceedings delivered with despatch, and certainly by October 2007.

12. I am satisfied even at this stage that to permit the interim order to continue would conflict with the best interests of the child.  The independent evidence of the expert witnesses and Ms Y drives me to this decision, at this stage.  I do not see the principles of Goode & Goode [2006] FamCA 1346 being apposite to the situation in which I now find myself. I have heard all the evidence over some 13 days and I am seized with numerous documents over the course of the trial. I am familiar with the evidence relied upon by each of the parties. What I propose to do is an exercise of my discretion and the suspension will cover a period of the husband's time spent with the child only for approximately six or so weeks.

13. One other matter of significance is that I have this morning made a number of interim orders relating to property, which includes the husband vacating the former matrimonial home within 21 days and for the sale of that property.  In the meantime, the mortgagee of two investment properties is to take possession pursuant to a Writ of Possession and following orders of the Supreme Court of Victoria made on 23 July 2007.  They too will be sold.  It is and will undoubtedly be a time of considerable pressure and stress and furthermore will, as I see it, have a direct impact upon the husband's housing of the child for contact purposes.  There will be financial strain, even though the husband's current contribution to child support is only the basic minimum of $20 per calendar month.

14. The husband's rigid, encapsulated beliefs so clearly exposed in his affidavit material, his writings and in the evidence before me are all of serious concern.  He has demonstrated an inalienable, blinkered approach to the wife's mental well being and accepts nothing of the advice and recommendations of the expert witnesses.  His response, to the contrary, has been to attack them.  I have the gravest doubt that he is capable of restraining himself and those of his family from either overtly or covertly besmirching or in some way endeavouring to alienate the child from her mother’s affection.

15. Mr P has made it clear that the husband, in his professional view, is mentally unwell and in need of psychiatric assistance.  The evidence describing the husband as having an encapsulated belief, and otherwise his conduct and unalterable negative view of the wife, is an issue to which I must give my careful attention.  Until such time as I have done this, given all that is currently within my command, I see it as an unacceptable risk to the child’s welfare and best interests in the current heated environment to permit contact to continue. 

16. At the conclusion of argument I indicated a preliminary view.  I have now had the opportunity for quiet and careful reflection in my chambers upon this important decision and I am satisfied that until further order, paragraphs 2 and 3 of the orders of Watt J should be suspended.  I propose to make an order to that effect and I will direct that my extempore judgment be transcribed, placed on the court file and made available to the parties.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date:  1 October 2007.