Prendergast and Parsons (No. 5)

[2007] FamCA 448

FAMILY COURT OF AUSTRALIA

PRENDERGAST & PARSONS (NO. 5) [2007] FamCA 448

FAMILY LAW - CHILDREN – INTERIM CONTACT – Application by the Independent Children’s Lawyer to suspend contact until the completion of the proceedings – On the facts currently before the Court, the application is refused.

R v R Children's Wishes (2000) FLC 93-000
Goode v Goode (2006) FamCA 1346

APPLICANT: Mr Prendergast

RESPONDENT: Ms Parsons

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 764 of 2004

DATE DELIVERED: 27 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT (NO. 2) OF: Guest J

HEARING DATE: 27 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Eidelson

SOLICITOR FOR THE RESPONDENT: Berry Family Law

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Brewer

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Robert Halliday & Associates

Orders

1. That the oral application of the Independent Children’s Lawyer to suspend the husband’s contact with the child a daughter, who was born in February 2000, be dismissed.

2. It is directed that the extempore judgment be transcribed, placed on the court file and made available to the parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 764  of 2004

Mr Prendergast

Applicant

And

Ms Parsons

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT NO. 2

1. I have before me an oral application brought by Mr Brewer, counsel for the Independent Children's Lawyer, of which notice was given on 26 March 2007, the substantive argument in support of which was delivered this day.  Mr Brewer earlier gave notice to the husband that an application would be made on behalf of the Independent Children's Lawyer for an interim order that, pending completion of the hearing, or such other time as may be appropriate, that all orders with respect to the daughter spending time with and communicating with him be suspended.  At that time, Mr Brewer informed the court that the Independent Children's Lawyer had interviewed the daughter and that "delicate matters were involved".

2. Mr Brewer submitted that his application may be sourced from the orders made by Watt J on 21 January 2005 concerning the time the husband spent with the daughter.  In summary, his Honour ordered that the husband have “contact” (to use the old term) with the child each alternate weekend from Friday (end of school) until the following Monday (at the start of school) commencing 21 January 2005, and each alternate Tuesday from the end of school until the following morning (at the start of school) commencing 1 February 2005.  There were further orders made by Watt J of a facilitating and additional nature concerning school holidays, Father's Day, Mother's Day, and the Christmas holidays.  The particulars are set out in paragraphs 2(a) to (h) of his Honour's order.

3. Mr Brewer submitted that a “suspension” of these orders should be effective from this afternoon.  He submitted that the test is one of an “unacceptable risk” that the husband will communicate with the daughter during the time she spends with him various of the matters addressed by her in the course of an interview with the Independent Children's Lawyer.  He, in effect, submitted that the husband cannot “help himself” and that his views about the mother were so entrenched and rigid, so utterly inflexible, that he could see no worth in her and that he would accordingly transmit his views to the daughter.

4. In support of his application, Mr Brewer referred to and relied upon the husband's various comments made in court this day in the course of his submissions.  For example, that the daughter was constantly “abused” by her mother, that she was “constantly brainwashed” by her and that the child suffered from “head pains and heartache”.  Various matters of that nature are well entrenched in the affidavit of the husband concerning his views of the wife, which have been maintained without demur for several years.  I need only go to the report of Mr P on 18 January 2005 to see the genesis of the maintenance of those views.  The report of Mr P makes that quite clear.

5. The views held by the husband are very serious indeed, and they are views to which Mr P commented upon in his report to which I have referred in argument in discussing the assessment he made in interview with the husband.  He records, for example, that the husband was of the belief that the daughter was “at risk” in the care of the mother.  The husband questioned the mother's ability to care for her daughter.  He alleged that the daughter had been “physically abused” by her since she was an infant and that she endured “physical and emotional maltreatment” at the hand of her mother.  In addition, Mr P recorded that the affidavit material of the husband conveyed a litany of complaints regarding virtually all aspects of the wife, her psychological functioning, her relationship with and treatment of him and alleged maltreatment of the child.  The husband was also critical of other institutions, people and experts.  Subsequent events have transpired to reveal Mr P’s commentary as correct.

6. The husband’s attitude has not changed and has been maintained to this day.  It is this that underpins the submission of the Independent Children's Lawyer that when one adds together these various indices it forms a picture that there is an “unacceptable risk” the husband will maintain a dialogue with the child detrimental to her best interests. 

7. Mr Brewer submitted that the application should be considered in the light of the report by Ms K, the Family Consultant in these proceedings, and in particular what she had to say in paragraph 33 of her report under the heading Evaluation, where she reported:

   “… Should [the father] continue to hold his beliefs about [the mother’s] mental health, and communicate these to [the daughter], she might experience some anxiety about her mother's ability to care for her.  Alternatively she could feel a need to cut off from her father, in order to protect herself from his views, and to demonstrate her loyalty to her mother.  Either of these responses would result in negative emotional consequences for [the daughter].”

8. Earlier in the report, Mr Brewer addressed my attention to paragraph 29 where Ms K reported, under the heading “The Child and her Relationships”, went on to say this:

   “… She immediately added that she wanted to stay with her mother for longer periods than her father, but did not want to tell anyone as she was concerned that the father would be upset.  She reiterated her desire to spend more time with her mother than with her father, perhaps indicating that at some level she has some awareness of the dispute between her parents, and some idea of the father's proposal.  Her reiteration of her desire to spend more time with her mother, than her father, could also indicate that she has concerns related to any significant change to her current living arrangements.”

9. Mr Brewer then tendered notes of an interview taken between the Independent Children's Lawyer, Mr Halliday, and the daughter on 26 February 2007.  The notes of that interview have been received in evidence without objection and are marked Exhibit “ICL1”.  They were provided to both Mr Eidelson and to the husband earlier this day.  I have read those notes which are a record of what the daughter told Mr Halliday during the course of the interview.  She said, for example, "I don't like grandpa to collect me”, referring to after school.  It is alleged that the daughter said, "He brings me home on the bus and very long way to travel”,  "I want my mum to get me to school and take me home from school", and, "I don't want my dad to bring me to school”.  She also allegedly said, "I don't get to do anything there”, (referring to her father's home).  The daughter allegedly explained, "Sometimes when we go" (to school) “I only drink something in the car.  I have no breakfast and he gets me ready in the car” (socks and shoes).  “I want to stay with my mum.”

10. It is alleged that the daughter made complaints about the unkempt state of her father's house and contrasted its condition to the house in which she lived with her mother.  She allegedly complained that “My dad picks me up very late from school and I have to wait around,” and expressed a desire to return to her mother's home on Sunday afternoon.

11. In terms of holidays, it appears to be the daughter’s wish to spend less time with her father.  She repeated her complaint that his house “was dirty”.  She reiterated that she wanted more time with her mother and that if the court ordered that she had to live with her father, she would feel "very, very, very, very angry and sad" and would “run to” her mother.  Specifically, it appears that the daughter also said to Mr Halliday that she did not want him to inform her father what she had said.  That request is the very epicentre to this application. 

12. Mr Brewer submitted that these statements were not being addressed as evidence of the truth, but only as to what the daughter had said, going to her state of mind.  He then addressed me on several of the various entries recorded in the notes and submitted that the application was, in effect, to remove the daughter from an arena in which she might be the subject of an inquisition.  Mr Brewer expressed a real concern that the discussions held between the daughter and Mr Halliday would be put to her by the husband.  He submitted that there was an “unacceptable risk” at this stage of that occurring and that, in the circumstances, the welfare of the daughter was at risk. 

13. Mr Brewer emphasised the fact that the husband's Case Outline Document was far from conciliatory.  He referred to the contents of the husband’s response to the wife’s solicitor's letter (Exhibit “H4”), and it is clear to me that it is most arguable, but I will await a final determination on the matter after I have heard all the evidence, that the husband had and has maintained without a waiver an entrenched negative, indeed vitriolic and rancorous view of the wife.  This is a matter of concern to me.

14. Mr Brewer referred to the fact that in September 2006 the husband was invited by the Independent Children’s Lawyer to participate in a psychiatric assessment.  The wife was agreeable to this so long as the husband also attended.  He refused.  However, as I pointed out to him in the course of debate that it was arguably open to the Independent Children's Lawyer to make an application for such an order, but that had not been undertaken. 

15. Mr Brewer submitted there was a risk of "psychological pressure" being put upon the daughter and that her safest position was not to be in the company of the husband, until "the heat is off".  He went on to submit that the application was as much for the “protection of [the daughter’s] relationship with the husband” as it was for the protection of her relationship with her mother.  He submitted that the husband's "canons" that the wife was psychiatrically ill remained both strong and unyielding and that, being under stress, there was an unacceptable risk he would convey his feelings to the daughter.  He submitted the temptation for the husband in these circumstances would “be hard” for him “to resist”, given the daughter’s conversations with Mr Halliday and what was confidentially revealed by the child to him. 

16. Mr Eidelson responded in a highly professional and objective manner.  He said that he had received instructions from the wife and the she did not "wholly support" the application advanced by Mr Brewer.  He emphasised that the wife had always “supported contact” despite the trenchant criticism of her by the husband.  He submitted that the wife would not be human if she did not feel emotion, concern and worry about the "increasing bizarre" level of attack made by the husband upon her.  Of that I have little doubt. 

17. Mr Eidelson submitted that the interview between the daughter and Mr Halliday had generated this application.  He said that there is new information that the daughter does not want the father to know her thoughts but this was something, as he submitted, that had already been placed with the Family Consultant.  Mr Eidelson emphasised that the wife supported the relationship between the husband and the daughter.  The reverse was not the case.  With considerable professional propriety, Mr Eidelson fairly submitted that it would “be difficult” to support the application “at this stage”.  He referred to the report of Ms K, who stressed that the daughter would be at risk unless the husband's views changed, and highlighted the evaluation to which I have already referred when dealing with the submissions of Mr Brewer.

18. Mr Eidelson submitted that the husband had made it quite clear that his views had not changed, and indeed, in his submission they had become more entrenched.  In the result, he submitted that there was insufficient evidence presently before the court to support the husband's views of the wife following my orders dealing with the strike-out application.  My reasons are on the court file.

19. The husband was provided with ample time in which to deliver his submissions notwithstanding that it was difficult to rein him in and deal with the issue for my determination.  He would, from time to time, stray into a repetitious diatribe of the mother's inadequacy and hopelessness as a parent.  However, his submissions were put with consummate courtesy.  He said that he "appreciated" my comments and made it clear to me that he understood the application and the proceedings.  In emphasising that fact, and I have no doubt that he has a complete understanding of the content of the proceedings, he stressed his position as a school teacher with five years' experience and the educational standard he has achieved in this country.

20. However, despite my efforts to control the content of his submissions, he then retreated to the allegations launched by him in his affidavit and the various other documents to which I have referred by asserting that most of the contents of Exhibit “ICL1” are consistent with the fact that “the wife has brainwashed [the daughter]”.  I found that submission very telling, as he then advanced into a further speech that he had corresponded with the Independent Children's Lawyer advising that the daughter had attended one period of contact with him suffering “injuries” to her forehead.  He made reference to other incidents, rhetorically asking: "Why hasn't the Child Representative conducted an interview about these incidents?"  He said that the daughter attended his home and said various negative things about him, “her grandfather, her auntie and the auntie's daughter”.  He said "it is well documented in my affidavit". 

21. The husband then addressed various of the matters set out in Exhibit “ICL1”, disputing much of it, particularly where it concerned the paternal grandfather, commenting that it was not the daughter's "natural vocabulary".  He submitted that the matters put by the Independent Children's Lawyer were based upon a presumption that he would in fact discuss the issues with the daughter.  In that regard, he said that he was aware of the “psychological impact” of such conduct upon children and strongly claimed, "I do not do it”. 

22. The husband then made what I regard as quite a good point, namely that the interview took place on 26 February 2007, some time ago now, and in which circumstances, why had not the application been brought in a written form?  He submitted that the material before the court, which is the material basically contained in Exhibit “ICL1”, is insufficient to warrant the gravity, and that is my word, of the orders sought under the application. 

23. I think there is some merit in that submission.  First of all, it is dealing with a wish by the daughter that she wanted to spend less time with her father and more time with her mother.  In H v W (1995) FLC 92 598 the views of children were exhaustively considered. That decision was later discussed by the Full Court in R v R Children's Wishes (2000) FLC 93-000. At page 87,070 the Full Court had this to say:

    “The Full Court in that case, (H v W) stressed the importance of trial judges giving proper weight to children's wishes but it did not say that they should not be departed from.” 

    Later the court also said:

    “What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of a child's best interest without giving them further significance.  When validly held reasons are departed from by the trial judge it is apparent that good reason should be shown for so doing.”

24. As matters presently stand, I do not have any material before me concerning the daughter’s state of maturity or the level of strength of her wishes.  However, undoubtedly it will become the subject of contest in the course of the evidence before me. 

25. It is a serious application to make at this stage of the proceedings, and, furthermore, it does surprise me that it was not made by the Independent Children’s Lawyer at an earlier time.  However, as I understand it, what has generated this application now is the constantly maintained an emphatic view of the husband as to the lack of worth of his wife both as a mother and parent, that she is otherwise mentally unwell, psychologically unbalanced and is an abusive parent.  That is his view.  It is not the view of expert witnesses that have, with considerable experience behind them, interviewed the husband, the wife, and the daughter, and observed the interaction of each of them with her.  In that regard I refer to the report of Mr P dated 18 January 2005, observing of course that it is yet to be tested.  It has already come under severe attack by the husband in his affidavit as has the family report of Ms K released December 2006.

26. If there is one thing that does emerge in these proceedings it is the evidence concerning the daughter.  Ms K reported that the child, then aged six years eight months, presented as a “relaxed and happy child”.  She reported, for example, (paragraph 30) that the daughter’s statements to her indicated she was “settled and happy at school” and had friends whom she saw at weekends when with her mother.  She reported that the daughter’s comments about and descriptions of both her mother and father indicated that she had “a secure and loving” relationship with each of them. 

27. Ms K also reported (paragraph 30) that the daughter reiterated the issues the wife had raised in relation to “not liking being late for school” or being collected late by the paternal grandfather.  These, she said, were clearly “real issues” for the daughter, as well as the positive aspects of being with the mother which related to the “closeness” of her mother's home from the school.  The child’s comments to the Independent Children's Lawyer (Exhibit “ICL1”) very much reflected matters that were raised with Ms K.

28. In the course of her report, in addition to commenting upon the loving relationship between the wife and her daughter, Ms K reported that the husband “had much to offer” the daughter, and that the evidence was that she, the daughter, “loved him” and “enjoyed her time” in his care.  That was qualified by Ms K reporting that it is was unfortunate the husband “had not shifted in his negative views” of and concerns about the wife.  She reported that the daughter would benefit from “any changes” the husband was able to make in relation to his views about the wife and also about the child's welfare when in her mother's care. 

29. I add together the separate aspects that I obtain from these two reports, albeit untested, and weigh them against the impact of the order sought by the Independent Children's Lawyer at this stage of the proceedings.  In a matter such as this, when dealing with interim applications and the effect upon such applications following the commencement of the Family Law Amendment (Shared Parental Responsibility) Act (2006), I appreciate the commentary of the Full Court in Goode v Goode (2006) FamCA 1346. I do not think I need descend at this stage into the legal rationales emerging from that case, for I am satisfied at this stage that the application argued by Mr Brewer has not been made out.

1. The husband has maintained a relationship with the daughter now for several years which has an established routine.  True it is the child wants to spend less time with him.  True it is that the child has complained not once but, it appears, several times (at least twice) that (inter alia) she is late for school, she does not like travelling on the bus and that she does not like being taken to the school by her paternal grandparent.  I think these are small worries compared to the greater impact of the application made by the Independent Children's Lawyer. 

2. What I am concerned about, however, is to emphasise this.  If there should emerge in the course of these proceedings the slightest scintilla of an indication that the father has discussed issues that passed between the daughter and the Independent Children's Lawyer and the contents of her private conversation with him, then this application will undoubtedly be renewed and I will visit it with severity.  The husband has, in his submissions, and which I take at face value, said that he has not and will not discuss the issue.  It is a matter for him.  He is on notice. 

3. The application is dismissed.

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  16 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as PRENDERGAST & PARSONS