PROCTOR & PROCTOR

[2014] FCCA 3122

FEDERAL CIRCUIT COURT OF AUSTRALIA

PROCTOR & PROCTOR [2014] FCCA 3122

Catchwords:
FAMILY LAW – Interim parenting arrangements – future care arrangements – entrenched parenting dispute – father seeks to suspend or discharge the existing parenting orders providing for time between the eldest child and the mother – risk of systems abuse by continuing involvement of agencies by the parties – extensive allegations of family violence by father and mother – allegations of abuse within the family – parties oppose the Order sought by the Independent Children’s Lawyer for funding of a Part 15 expert – court not satisfied that a Part 15 report required – consideration of role of Independent Children’s Lawyer when they have failed to meet with the children.

Legislation:  

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 60CC(2A), 61C, 61DA, 65DAA(5), 65DAC, 120A, Part II
Mental Health (Forensic Provisions) Act 1991 (NSW)
International Convention on the Rights of the Child, Article 12

Geremia v. Harb (2008) 19764 (ON SC)
Makita & Sprowles (2001) 52 NSWLR 705
Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611
Stevenson & Hughes (1993) FLC 92-363

Applicant: MS PROCTOR

Respondent: MR PROCTOR

File Number: PAC 1846 of 2014

Judgment of: Judge Harman

Hearing date: 16 December 2014

Date of Last Submission: 16 December 2014

Delivered at: Parramatta

Delivered on: 16 December 2014

REPRESENTATION

Solicitors for the Applicant: Mr H. Prakash of Hemant Prakash & Associates

Solicitors for the Respondent: Ms Thompson of Etheringtons Solicitors

Solicitors for the Independent Children’s Lawyer: Ms Tiongan of Mills Oakley Lawyers

ORDERS

Accordingly I make orders as follows:

1. Leave is granted to the Respondent to file in Court an Affidavit and Amended Response.

2. Grant leave to the Applicant to withdraw and discontinue her Application for Contravention filed 12 December 2014 without Order as to costs.

3. I confirm the Interim Orders made 25 August 2014.

4. In addition to the above Orders, the mother shall spend a block period of time with the children X and Y from 5:00pm on 9 January 2015 until 5:00pm on 25 January 2015, the changeover for such period to occur in the foyer of the (omitted) Police Station and not otherwise.

5. The parties shall be and are hereby retrained from varying the arrangements ordered today by parenting plan or informal agreement between them.

6. Pending further Order, each party shall be and is hereby restrained from attending at or within 50 metres of the residence of the other without the written consent of the other first had and obtained.

7. Dismiss the Application in a Case filed 9 December 2014 and remove it from the list of cases awaiting hearing.

8. Decline to make an Order for the preparation of a Part 15 Report.

9. IT IS NOTED that an Order for the preparation of a Family Report was made 25 August 2014 and the Court is advised by family consultancy that the report should be available no later than 1 May 2015.

10. The matter is adjourned for further mention and directions to 9 June 2015 at 9.30am.

11. Direct the parties attend in person whether legally represented or not on 9 June 2015 at 9:30am and subject to the Family Report having been released in a timely fashion then each of the parties are to have read the report and are to have considered any recommendations contained therein prior to that appearance and be in a position to:

    (a)Provide full and proper instructions to their legal representatives;

    (b)Advise the Court of orders proposed by them (if different to those proposed in their respective Application and Response);

    (c)Identify the judiciable issues that may require hearing;

    (d)Address means by which the proceedings might be brought to a conclusion other than by hearing (such as further Family Dispute Resolution, family counselling or other action);

    (e)Advise their position as regards any recommendation/s made by the report writer as to family counselling or participation in any course program or service; and

    (f)If hearing time is sought, to advise the witnesses proposed to be called and a realistic estimation of the hearing time required to complete the matter to Judgement.

12. The Independent Children’s Lawyer shall forthwith and no later than 23 January 2015, meet with the children X and Y whose interests the Independent Children’s Lawyer represents.

13. Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Relationships Australia (omitted)  for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and upon completion of such family counselling services or once the parties are substantially engaged therewith, the assessment of suitability for Family Dispute Resolution and subject to the assessment of suitability, each party shall then:

    (a)Attend at such times, dates and places as may be advised; and

    (b)Pay such fees as may be charged;

    to participate in and complete such sessions of Family Counselling and Family Dispute Resolution as are assessed as suitable and offered and

14. In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.

15. Pursuant to S.65DA(2) and S.62B, 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.

IT IS NOTED that publication of this judgment under the pseudonym Proctor & Proctor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT PARRAMATTA

PAC 1846 of 2014

MS PROCTOR

Applicant

And

MR PROCTOR

Respondent

REASONS FOR JUDGMENT

1. These proceedings are before the Court today for the parties to continue yet another round of litigation with each other. 

2. The matter has been on foot only since April of this year and already the parties have, taking into account Applications and Responses, collectively filed not less than seven applications. The parties preferred means of dispute resolution and management of their children’s lives would appear to be involvement of the Court or the Police.

Abridgement of time

1. The matter is listed today for mention and directions having been adjourned to allow a number of inquiries to be completed by the Independent Children’s Lawyer. Some, but not all of those enquiries have been completed notwithstanding that the matter was adjourned from 14 October 2014, some two months ago.

2. Before the Court today, the parties having determined for themselves the listing of their Applications, are two additional Applications to those forming the substantive proceedings, namely:

   a)An Application in a Case filed by the mother on 9 December 2014; and

   b)An Application for Contravention filed by the mother on 12 December 2014.

3. I make very clear that the practice of parties filing documents shortly before a Court event, in this case a listing for mention only, and then seeking to move upon their Application shall not be permitted. If parties wish to have an Application before the Court they shall file it, obtain the leave of a Registrar to abridge time if they suggest that it is urgent or have a hearing date allocated to it by Case Track. Parties filing Applications, as the mother has, days before a mention date and the Applications being made returnable on the next Court date usurps the Court’s function in controlling the listing of work, potentially denies Due Process and is entirely inappropriate.

4. I will request that an appropriate notice is forwarded to the Manager of Client Services highlighting the issue and requesting that the practice cease. The business of the Court and a busy duty list is completely overtaken and swamped when parties are permitted, through the creation of expectation that Applications that they file – in this instance four working days and one working day respectively prior to a mention – will be dealt with on the day allocated. They will not. The matter is dealt with today only on the basis that it was apprehended when the proceedings were before the Court two months ago that there were problems with compliance with existing Orders of the Court.

Existing orders and issues for determination

1. The primary Order to which the proceedings relate today is an Order made 25 August 2014. It was made following an interim hearing in which both parties were involved and which was completed after 7pm.  It would appear that these parties, to paraphrase the words of Quinn J of the Ontario Superior Court[1], treat this Court as their own private banquet table and feasting upon the Court’s meagre resources. Their feasting will no longer be permitted.

   [1]

2. The primary Order regulating the parenting of two of four children of the relationship:

   a)X born (omitted) 2002; and

   b)Y born (omitted) 2004

   provides, reflective of the level of conflict and lack of cooperation between these parents, that they shall each have parental responsibility at such times as the children are in their respective care. That has some real importance. It is a matter for these parties to make arrangements for the children whilst they are with them and it is not a matter that they need to consult the other about nor that the other need be concerned about. 

3. The primary Order provides that X and Y spend time with their mother each weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday, together with one half of each short New South Wales school holiday period. No Order was made with respect to the Christmas holidays as it was anticipated that the parties might find some consensual mechanism for addressing disputes between themselves rather than litigiously and bring about a resolution of that issue.

4. The proceedings have been administratively adjourned from a prior occasion and with the consent of all parties. That would appear to have been based upon a false hope that the further adjournment would achieve something. 

5. The mother now seeks an Order that she have one half of the Christmas school holiday period. She otherwise seeks Orders which would restrain the husband from entering, loitering or attending within a radius of 100 metres of her present address.

6. The mother in her evidence suggests that she is unaware of how the husband came to know her address as she has never disclosed it to him.  How it came to be is not clear from the evidence. However, the husband agrees that on one occasion he attended at her premises – it would seem in company with the Police – and entered thereupon and removed the children. The father suggests that this was on the basis that the mother had departed for work early on a Saturday morning and had left the children at home alone. 

7. The mother suggests that she had made entirely appropriate arrangements for the children, to be cared for or minded by the person with whom she shares the accommodation – there being two dwellings upon the block – during her absence.  I need not determine the voracity of those allegations nor is it possible to do so on the presently available evidence. 

8. The issues that require address today thus are confined to:

   a)Arrangements for the Christmas school holiday period; and

   b)Whether the Court interferes with the Orders already in force with respect to the children’s arrangements. 

9. The father, by an Amended Response (presumably intended to be a Response to the Application in a Case), seeks to suspend or discharge the existing parenting Orders and seeks that the older child X, 12 years of age, spend time with his mother “in accordance with his wishes”. The father’s evidence is that the child has no wish to spend time with the mother. Accordingly, one can readily infer that the father’s proposal is that the child spend no time with the mother, because an Order for him to spend time in accordance with his wishes when the father asserts stridently that the wish is to have no time will result in that outcome. 

10. With respect to the younger child, the father proposes that there would be an Order for alternate weekend time between that child and the mother rather than the present Order for weekly time. The father is silent with respect to school holiday time. 

11. The father also seeks an Order that if the mother is not able to personally care for either child while they are in her care, that the children are to be with him. The father does not seek a mutual order that would compel him similarly in delivering the children into the mother’s care if he were not available, for whatever reason, to care for them.

12. Finally, the purpose for which the matter was listed today, the Court must deal with procedural management of the matter. The proceedings were stood over to enable inquiries to be made with respect to the need for and if considered necessary, funding of a Part 15 expert. Inquiries have been made and an expert is now proposed. That would be an Order made with significant cost to the parties, who would be required to fund the Report, and is opposed by both parties. Opposition to the Order proposed by the Independent Children’s Lawyer is one of the few areas of parental unity apparent in this matter.

13. A Family Report has already been ordered in the proceedings. The Court is advised that the report will be available for release to the parties on or before 1 May 2015. Accordingly, the matter will be adjourned to 9 June 2015 to allow for release of the Report, to allow the parties to consider the Report and determine what action they wish to take to bring the matter to a conclusion. 

14. I propose also to deal with a fourth issue today, being the Family Counselling and Family Dispute Resolution services that the parties will engage with in an attempt to educate themselves as to their obligations as parents as well as to attempt to resolve issues consensually. The parties have had one endeavour at consensual resolution and one endeavour only, being attendance at a Conciliation Conference with a Registrar to discuss their property affairs. That settled nothing. It is suggested by the parties that the Conference did not proceed for any great length of time on the basis that the Registrar had expressed to the parties his view that the matter could not be resolved unless the parties were able to resolve their parenting dispute.

15. On a final basis, each party seeks that the children live primarily with them and spend frugal periods of time, if any time, with the other. It is to be noted with respect to the property pool that subject to some minor areas of dispute, that the asset pool has a total value of somewhere in the vicinity of $144,000 to $192,000. 

16. The parties have already invested significant effort and resources in conducting their litigation and by the time the matter is concluded will no doubt have consumed vast quantities of tax payer funded resources as well as resources of their own. They seem intent on prosecuting each and every minor point to its logical conclusion and by determination by the Court rather than consensual resolution and that is a course of action that their attorneys seem content to assist them pursue.

17. It may be that there is some validity to the position of one, other or both of the parties. They each make profoundly significant allegations of family violence with respect to the other. 

Evidence

1. The father asserts that the mother has, since the birth of the children and each of them – and there are two elder children not the subject of the proceedings to whom those allegations also apply – engaged in a pattern of abusive, violent and coercive behaviour. The father alleges, although there is no particularisation of the broad allegations, that the mother has, for example (see paragraph 20 of his affidavit), been verbally and emotionally abusive as well as physically abusive, whatever that may mean. The mother makes similarly broad and non-particularised allegations as regards the father.

2. There is a history of involvement of the Police. Between early 2011(or possibly earlier) and now there have been Apprehended Domestic violence proceedings between these parties as well as applications for breach of Orders made. The father has been the principal agitator for such relief. For a significant period whilst such applications were prosecuted the parties were still living together albeit separately and apart under the one roof. 

3. The Court has before it the various interim and final Orders that have been made. The father has chosen not to place before the Court the complaints or statements of fact upon which the complaints were based. Accordingly, the Court is not in a position, as the Court is obliged by section 60CC(3)(k) of the Family Law Act 1975 to do, to assess the circumstances surrounding the making of such Orders.  The father certainly refers to serious complaints whereby he suggests that the mother has, on one occasion, threatened him with a knife or has occasioned physical injury to him or one or more of the children.

4. The mother for her part makes similar allegations with respect to the father. The mother alleges that the father has engaged in a pattern of coercive and controlling family violence towards her throughout the relationship. 

5. On the basis of that alleged by the father of the mother, the father’s attendance at the mother’s home is somewhat curious. 

6. On the father’s version of events he is suggested to have acted entirely appropriately desiring to uplift the children in circumstances where they were left alone with no adult supervision and allegedly concerned for their own safety and requested of their father that he do so. That leaves aside the issue of how he knew the mother’s address when she has not told him. Possibly the child did. The mother would suggest a more nefarious means of disclosure, such as following. 

7. The mother, for her part suggests that the father’s attendance at her home is entirely consistent with the pattern of coercive and controlling family violence of which she complains.

8. The mother suggests that the father does not take any active step to support or encourage her relationship with the children. I can make no finding in that regard. It is however, her allegation. 

9. The father asserts that he supports and encourages the children’s relationship. However, without particularisation the only evidence offered in support thereof is the annexure to his material of Reports from the children’s school, the children’s school counsellor and a psychologist, Mr N, upon whom both the father and it would seem, all four children have been attending for some little time and since at least 2012. 

10. It is impossible to discern anything from Ms N other than the clear fact that she has never read the expert code with respect to the preparation of Reports. It is impossible to discern, for example, which information she has obtained from the father and that which she has obtained from the children. She suggested that there has been complaints of significant violence and diagnoses offered in the following terms: “Clinical interviewing and assessment revealed that they [plural - the father and all four children] were all suffering from anxiety and post traumatic stress disorder due to domestic violence in the family [emphasis added]”.

11. No explanation of alternate bases for that which is observed and diagnosed would appear to have been considered nor offered. 

12. It is suggested that there has been abuse within the family.  It is unclear whether that opinion is based upon information obtained from the father, the children or both. 

1. It is suggested that the father and children see Mr N on a regular basis for counselling for “trauma and anxiety”.  Mr N then offers the opinion:

   I am of the opinion that the children would flourish and be happy and safe in the sole custody of their father and it would be extremely detrimental to their welfare and mental health if they were to be further exposed to such violence and abuse by their mother.

2. Two fundamental difficulties arise. Firstly, there is no direct knowledge by the person offering the opinion, Mr N, as to the facts upon which she bases the opinion (See, for example, Makita & Sprowles (2001) 52 NSWLR 705, Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611 etc.). Secondly, the mother has never been involved in any appointment. The father suggest through his Counsel that the mother has been invited on numerous occasions over a lengthy period but has declined or failed to respond. There is no evidence to confirm one way or the other. What is known is that the mother has not participated and thus, such opinions are offered by Mr N based upon reportage, which, on the mother’s case, is manufactured or exaggerated or as regards violence, is violence perpetrated by the father.

3. The Court must balance the children’s need for protection, but there are two competing and countervailing considerations of protection. On the father’s case, the children must be protected by the mother, her behaviour towards them and the consequences of it. On the mother’s case the children must be protected from the father, whom she suggests engages in coercive and controlling violence towards her and as part of that, actively undermines her relationship with the children let alone failing to support it as she alleges.

4. There are difficulties suggested with respect to the children’s relationship with the mother.  On one occasion, as demonstrated by a document produced under the heading “Account of Events – Friday 10^th October 2014”, apparently by the Principal of the (omitted) Public School, it would seem that the eldest of these two children, X, presented to his class teacher on the morning that he was to attend with his mother that afternoon, suggesting, “He informed her he was not going home with his mother in the afternoon because he didn’t want to”.

5. It is suggested that the teacher told the Principal and the Principal told the teacher that it was not a matter for her to become involved in and the child would not be forced to wait and go home with the mother. Notwithstanding that statement it would seem that when the school bell rang at the end of the day and the child began to leave the school grounds, that the child was spoken to by the teacher and taken to the office. It would then seem that for some hours, possibly as many as three, that there was then discourse in the school office involving or suggested to involve the child, the mother, the mother’s attorney, the Independent Children’s Lawyer and ultimately, the Police – called by whom it is unclear.

6. The waste of Police time is occasioned by these parties and regrettably by so many that come before the Court should not be tolerated. It is the role of the Police to keep the peace, to investigate, when they have probable cause, the commission or likely or impending commission of criminal offences and nothing more. It is not the role of Police to referee squabbles between children and parents or between parents.  With gay abandon, the Police would seem to be called by these parties.  One would hope the Police would, at some stage, charge one or other of them with wasting their time. The Police have better things to do and more important duties to perform in the community. 

7. It would seem the child or children have also been attending upon their school counsellor. The father produces and relies upon a Report from the school counsellor dated 6 May 2008 and notes dated 12 June 2009. That material is annexed to the father’s Affidavit. It is suggested within those documents that certain things are reported by and observed of Y. The Report and notes are five to six years old and how it is believed by the father that they are of assistance in determining this case, where Orders have already been made and each party seeks some variation or amendment, is unclear.

8. What is clear from the material that the parties have filed is that they are unable to cooperate or communicate on any level. I have real concerns as to the ability of either of them to be insightful as to their children’s needs or to separate or distinguish the children’s needs from their own. They would each appear, as demonstrated by their own evidence, let alone that of the other, to conflate their needs with those of the children repeatedly. That is perhaps one of the difficulties with the rights based approach towards children’s matters. Those who are responsible for protecting and facilitating the child’s rights, giving them life and bringing them to fruition, are their parents - the very people locked in bitter dispute.

9. The parties’ proposals on a long-term basis could not be more diametrically opposed. The mother seeks that the two children live with her and spend what she describes as “substantial and significant time” with the father. What she is proposing is nothing of the sort. She is proposing alternate weekend time.

10. The father, for his part, proposes that the children would live with him and by reference to his Amended Response:

    a)In the case of X, such time with his mother as he desires.  As I have already indicated that would be, on the father’s case, effectively no time; and

    b)In the case of Y the father proposes that she spend time with her mother “as this Honourable Court deems fit”. Presumably the father has not formulated a proposal as to that which he believes is best. 

11. The father does seek a number of interim or interlocutory Orders. He seeks that the parties attend a Child Inclusive Child Dispute Conference as a matter of urgency. That would occur, if ordered, in March 2015. The parties will be attending Family Report interviews at around that time. On that basis, it would not be a worthwhile use of the Court’s resources. 

12. The father seeks that the mother be required to undergo psychiatric assessment. That is the very assessment which would arise from the commissioning of a Part 15 Report and yet that is opposed by him. The father proposes that following such an assessment that the mother “comply with all recommendations and provide a copy of the assessment to the Independent Children’s Lawyer and the Respondent”.

13. Such an Order would not be contemplated by the Court. It is not the role of psychiatric assessment to determine what a party must do. That is the role of the Court, based upon a consideration of that which flows from the assessment. It is most assuredly not the role of the Independent Children’s Lawyer nor the father.

14. The father seeks that the mother provides Medical Reports from her psychiatrist or General Practitioner to the Independent Children’s Lawyer on a monthly basis, or with such frequency as the Court may determine. I propose to make an Order that requires that the mother provide a Medico Legal Report from her treating psychiatrist. However, that will be provided for the purpose of assisting the Family Consultant to complete their Report and so that such evidence is placed before the Court.

15. The Orders that the father otherwise seeks are enumerated as above.

16. The mother, for her part, seeks on an interim basis that time continue per the existing Orders and subject to the restraint to which I have referred as well as for one half of the Christmas school holidays. As already observed, no Order was made with respect to the Christmas school holidays as there was some hope, forlorn and misplaced it would seem, that the parties might resolve that issue between themselves or with the assistance and intervention of the Independent Children’s Lawyer.

The Independent Children’s Lawyer’s inquiries

1. The Independent Children’s Lawyer appears by an agent today.  It is no criticism whatsoever of the agent, although the agent is not an Independent Children’s Lawyer panel solicitor. 

2. A Minute is tendered proposing the appointment of a named psychiatrist to prepare a Report. That Order is resisted by both parties, both as to the person suggested to be appointed (in the case of the father) and common to the parties – their one point of commonality in the proceedings today – on the basis of the cost being $13,200 or something approaching 10 per cent of their asset pool. Each asserts that they have no means to fund such a Report without selling the home.

3. The issues that are raised in the case would not appear to warrant or require such an intervention. Clearly the mother has, on a past occasion, been dealt with by a Local Court Magistrate under the terms of the Mental Health (Forensic Provisions) Act 1990 (NSW). That occurred during the course of dealing with an Apprehended Domestic Violence complaint. The mother continues to see a psychiatrist. There is a need for evidence with respect to the mother’s mental state. However, that can be obtained from the mother’s treating doctor or a limited Medico Legal Report. The balance of matters that are proposed to be addressed by a Part 15 expert can be more than adequately addressed by a Family Consultant.

4. A Report from the mother’s treating psychiatrist, confined to diagnosis and treatment would be adequate to address what, if anything, needs to be taken into account in assessing and accommodating the best interests of these children as regards the mother’s mental state.

5. I am not satisfied that a Part 15 Report is required. I am satisfied the same outcome can be achieved through the Family Report already produced and by the mother producing a Medico Legal Report from her treating psychiatrist. If further issue then arises it can and will be addressed. However, for present purposes, I am simply not satisfied that a Part 15 expert at a cost of $13,200 is necessary nor affordable or practical for these parties. I do not propose to engage in dialogue as to the person suggested to be appointed. That need not be addressed for today’s purposes.

6. It is alarming that the Court is advised today that the Independent Children’s Lawyer has not met with the two children whose interests the Independent Children’s Lawyer represents. The Order for the appointment of the Independent Children’s Lawyer was made some time ago. That Order was made on 25 August 2014 – four months ago. The issues in relation to these children include suggestions that the eldest child, X, has a strong and firmly expressed view with respect to future arrangements and the mother’s counter allegation that his views are heavily influenced by the father. 

7. Article 12 of the International Convention on the Rights of the Child provides:

   1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

   2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

8. The above Article makes very clear that children have a right to have their views taken into account in proceedings that affect their future and wellbeing. Children also have a right to appropriately participate in proceedings before this Court and which affect the child. The right of participation and its facilitation has been the subject of negative and critical comment by recent Australian Institute of Family Studies research as well as by PhD research by authors such as Ross and Bell.

9. That these children, for four months, at their ages – 10 and 12 – have not met the person representing their interests is unforgiveable and unprofessional. It is something which the Legal Aid Commission has specifically amended their guidelines and funding policies to ensure that it occurs, a separate stipend being paid for that very purpose and with the expectation by the Commission that it will be so. 

10. If the Independent Children’s Lawyer has not met with these children in a very short space of time then an Order will be made discharging the present Independent Children’s Lawyer and seeking that the Commission appoint a fresh representative. The matter will otherwise be referred to the Legal Aid Commission. One would hope that an invoice has not been submitted that incorporates the fee for meeting the children as clearly that has not occurred. 

11. These children have a voice. The father suggests it is a genuine voice influenced by lived experience. It is suggested by the mother that the voice is not genuine. The mother asserts that the children have been “brainwashed” by their father. That is not to suggest that either allegation is accepted. It is simply the allegation each parent makes. 

12. It would be important for the Independent Children’s Lawyer to meet with the children in these circumstances. Meeting with the children is not so much so that they can form their own assessment as to whether the allegations are true or not. The Independent Children’s Lawyer is not necessarily in a position to formulate any opinion as to the genuineness or otherwise of children’s views as expressed. But it is important that they hear the children. It is important for these children, who deserve respect, to be able to meet the person who represents their interests. 

13. To suggest that one can represent the interests of 10 and 12 year old children without meeting them is problematic. It is often raised that to meet children who have been engaged with a number of other agencies or who are suggested to be enmeshed in their parent’s dispute might represent “systems abuse”. I make clear that this is not raised as the basis for the children not having been met with. No reason is offered. Meeting with a child in these circumstances does nothing of the sort. It represents the proper and appropriate professional discharge by the Independent Children’s Lawyer of their duties. 

14. The enmeshment of the children in the dispute and their being touted around to various other services or agencies – the Police, counsellors, psychologists and the like – is the abuse, not the representation of the child and their interests. 

Material Considered

1. In dealing with the mother’s application I have read and considered each of the documents that the parties have identified. That has comprised:

   a)The Application in a Case;

   b)An Affidavit in the mother’s case;

   c)A Response to the Application in a Case;

   d)A substantial Affidavit by the father;

   e)Submissions by the attorney for each party.

2. I do not propose to canvass the evidence in further detail. Suffice to say that each portion of the documents identified has been read and considered and taken into account in this determination. 

3. There is some force to that which is asserted by the father’s attorney that the children’s voice should be heard in the proceedings. However, in light of the controversy surrounding the “genuineness” or independence of the children’s expressed views that voice must first be ascertained. That will be a matter for appropriate professional comment by a social scientist who can also comment on the factors which might render that voice other than genuine. Accordingly, I am satisfied that the Family Report must proceed post-haste. As soon as the Report is available it may be that other issues arise which these parties will seek to consume more Court resources ventilating. 

4. In the meantime however, I am not satisfied that an adjournment of the proceedings to engage in the Report process is required before determination of these competing applications to interfere with the existing interim Orders. There are Orders in force. They were made quite recently and when both parties were present and both presented evidence to the Court. Nothing would appear to have changed. The Court does not serially review its own Orders or conduct serial interim hearings nor hear Appeals from its Orders.

5. I am satisfied, in light of the controversy between these parties as to whether the children’s views are genuine or manufactured or significantly influenced by their father, that conducting a further interim hearing would not be appropriate, an appropriate use of the Court’s resources nor indeed, necessary. Absolutely nothing has changed. 

Legislative pathway

1. I will touch further upon certain aspects of the evidence in dealing with the legislative pathway to which I now turn. 

2. I am reminded by section 60CA of the Act, that in all that is done, the children’s best interests are the paramount consideration.

3. I must then turn to the objects and principles in section 60B of the Act which I incorporate herein:

   Objects of Part and principles underlying it

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;  and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;  and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;  and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);  and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. The Court is required to ensure that the best interests of children are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. 

5. The Court must also balance against that object the need to protect children from physical or psychological harm through exposure, abuse, neglect or family violence, as well as ensuring the children receive adequate and proper parenting and that seeing that parents fulfil their duties.

6. As regards duties, what is clear and apparent is that these parties and each of them should read, indeed, study and absorb the dicta of their Honours Fogarty and Nye JJ in Stevenson & Hughes (1993) FLC 92-363, an authority now some 22 years of age but still good law and still good reading. The parents might then understand that it is their behaviour which is harming their children. They might then begin to comprehend that how they approach their duties and responsibilities as parents – particularly as regards compliance with Orders of the court – impacts upon their children and non-advantageously.

7. As regards the duty of these parents to ensure that these children are receiving adequate and proper care, each alleges that the other has some gross deficiency. How that can be dealt with, or further dealt with, on an interim basis I do not understand. 

1. Each party suggested that their evidence would support a finding that the other parent is incapable of providing sufficient care, such as to allow them to have greater than alternate weekend time with these children. To the extent that X is suggested to be expressing clear views. As I have indicated, there must be an appropriate ascertainment and address of those views.  It will follow once there is expert evidence before the Court in the nature of a Family Consultant’s Report. 

2. For present purposes, I acknowledge that in all probability X is likely saying to all of those who have reported such things, that he does not wish to spend time with his mother. However, I will deal with his wishes separately and shortly. They are not determinative of the issue and particularly not in circumstances whereby it is suggested that they are not his genuine or uninfluenced views. 

3. As regards the children’s meaningful involvement in the lives of each of their parents and the parents in the children’s, I am satisfied that the interim Orders that were made in August 2014 should continue. I am conscious that it provides that the children are with their mother each weekend from the conclusion of school Friday until the commencement of school the following Monday. That was deliberately ordered to ensure that the parents did not need to come into contact with each other. Notwithstanding that Order, it would seem that the parents do come into contact on a regular basis and by deliberate action. 

4. The father had protested at the interim hearing in August, 2014 that changeovers should occur at a McDonald’s restaurant. I made clear that I would not make that Order. There is no need to expose others, intent on innocently enjoying time with their children at that establishment, to the conflict and distress of these parties and their children.  Further, if there is any basis to the suggested influence of the children then that would simply lead to regular events such as those that played out at the children’s school recently.

5. An Order was  made for school to school changeover and if and only if it were not a school day, (ie, school holidays), that changeovers would then occur at a Police Station – such was the level of concern raised by the allegations each raised regarding the other parent with respect to family violence.

6. It is clear from the mother’s evidence (which the father does not dispute), that the father has determined on occasions when the children have not been at school, whether ill or otherwise, that changeovers will occur at McDonald’s. That venue is dictated by the father. That practice will cease forthwith. 

7. It is not the role of franchised fast food restaurants to provide supervised contact changeovers. That is the role of a contact centre.  As a Contact Centre is not available on short notice or sporadically and in light of the allegations each raises, the parties were ordered to attend upon a Police Station. The father has extensive family violence Orders against the mother. The mother alleges extensive family violence perpetrated by the father against her. If either wishes to be believed at final hearing, one would hope they might understand the logic of complying with that Order. If these parties wish to be believed as to their fears and concerns each of the other, then it would obviate against either of them proposing or acquiescing to changeovers at such a venue.

8. McDonald’s restaurants (or any other fast food chain) are not the place for parents to ventilate their disputes with each other or attend in the vain hope that the other parent will not behave in the manner that causes them such fear and concern purely because it is a public place. They are places staffed by adolescents. They are places filled with parents and their children. No one need be exposed to the puerile behaviour that these parents complain of with respect to the other.  It is bad enough their own children are. It is not the Court’s role to unwittingly subject others to such behaviours and consequent distress.

9. The parties should be disabused of the optionality of compliance with the Court’s Orders. Compliance is not subject to their desire or consent. I have some concern that these parents pay scant regard to any Order that the Court makes. Orders were made for changeovers at the children’s school or if not a school day, at the Police Station as it was the only means by which the Court would be satisfied the children would be protected and shielded from exposure to the parent’s conflict. 

10. I am satisfied the children will – on balance – benefit from a continued arrangement whereby they spend time with both parents. It is a very difficult and sharp fulcrum upon which to balance the alternate hypothesis each advances with respect to the children’s views and sentiments.

11. If the mother is correct, the children should be removed from the father’s care. That is a matter that will await final hearing and findings of fact. 

12. If the father is correct, the children should not be exposed to the mother other than for fairly brief periods of time and possibly, in the case of X, in accordance with his views. That is, again, a matter that will await final hearing and findings of fact.

13. The parties themselves have muddied the evidential trail so badly through the continued involvement of Police and other agencies and the enmeshment of their children in their disputes that it is impossible, at this point, to even begin to comprehend common fact. 

14. The children have a number of rights created by section 60B(2) of the Act. The children have a right to know and be cared for by both of their parents, a right to spend time with both of their parents and to have their parents share duties and responsibilities and agree. They are not rights that have any realistic prospect of being met at any time in the foreseeable future. They are also rights which are not absolute. The rights are subject to the caveat that their enjoyment of them must not be contrary to their best interests.

15. The difficulty with the children’s rights in this case is that the parents – those who are suggested to represent the greatest danger to these children – are those who are left to recognise, act upon and fulfil the children’s rights. It is also difficult in that the children are suggested by these parents, inappropriate so, to have a role to play in determining arrangements for themselves. They do not. These children have a voice, not a choice.

16. There are Orders and the parties are expected to comply with them. If they suggest that there is difficulty in doing so then, again, they should refer themselves, or their attorneys should refer them to Stevenson & Hughes (1993). Forlorn as the hope may be they might even attempt or be encouraged by their attorneys to attempt to engage with each other in Family Dispute Resolution or Family Counselling services to address matters of concern. 

17. If the parents suggest that the children require any form of Counselling or other intervention then the parents might contemplate that they might both be involved, might both be informed that it is contemplated and both encouraged and permitted to have some input into that service which might change behaviours. 

18. To do otherwise generates the very grave difficulty that such evidence is tainted and difficult to admit. It may well be that portions of the interventions which have occurred to date would fall foul of section 120A of the Act. Whether it does or not, the manner in which that evidence is presented makes it completely non‑persuasive.

19. I am not satisfied that the children’s right to spend time with both of their parents is demonstrated as contrary to their best interests to such an extent as to obviate against a continuation of the interim Orders or the children spending time with their mother during the Christmas holidays as they have during the shorter school holiday periods.

20. I must then turn to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies and if it does, determine whether it is rebutted. As would be apparent from the interim Orders already in force, I was and remain satisfied by reference to section 61DA(3) of the Act that it is inappropriate for the presumption to apply in this case. The allegations raised by the parties – if accepted – would suggest that neither is an appropriate custodian.

21. The allegations each raises are serious and profound but cannot be the subject of findings today. Thus, the Order pursuant to section 61C of the Act has already been made such that each party is entitled to make decisions regarding the children whilst they are in their care and the parties are not compelled by section 65DAC of the Act to consult with each other. That being so, I am not obliged to consider equal or substantial and significant time before any other time arrangement.

22. I propose to consider all time considerations at large by turning to section 60CC of the Act.

23. I must commence with the primary considerations being:

    a)The benefit to the child of having a meaningful relationship with both parents;  and

    b)The need to protect the child from physical or psychological harm through exposure, abuse, neglect or family violence. 

24. The latter is prioritised over the former by section 60CC(2A) of the Act.

25. The father raises a jeremiad of complaint with respect to the mother, suggesting that since the birth of each of these children that they have been subjected to abuse. The majority of that material has been placed before the Court when interim Orders were made in August 2014. The evidence of the father which relates to that which has occurred since the Orders were made in August is limited. The father suggests that for some periods the children were not presented as they had been sick. He goes on to add “…Or there have been health and safety issues”. What they are, are not specified. How the father expects that to be taken into account in that circumstance fathoms belief. 

26. The father complains that X has suggested that he has been “abused” by the mother. He is suggested to have said, “She doesn’t care for me as her son and it really hurts me”. She is suggested to call him names, particularly when he watches TV. She is suggested to tell him to be quiet. She is suggested to swear at him in (language omitted), a language he is suggested to not speak or understand. How he knows it is swearing is unclear. It is suggested that she embarrasses him when they are with (country omitted) friends and that they talk about him and make funny remarks about how he looks and how he talks funny, the child apparently having an issue with his speech, or comment upon his diet. He is suggested to have indicated, “I don’t feel safe with her” but nothing is suggested as the rational basis for that. 

27. The events of 17 October 2014 at the school, when the Police were called and attended, assume some great significance. Whilst there was a 3 hour “stand off” the child ultimately went home with the mother. It is concerning that the Police were involved, no matter who called them. It is concerning that the child presented at school as he did on the morning – obstruent and defiant and was not disabused of or corrected from that behaviour by his father. It is concerning that notwithstanding the standoff for three hours that he ultimately left with his mother and there is then no complaint whatsoever about the weekend visit. 

28. X is suggested to indicate that he does not wish to visit his mother.  Y is suggested to make similar statements. They are suggested to be “bored” at the mother’s home, which home is suggested in some unspecified regard to be inadequate. These parties might perhaps reflect on the benefits they and their children have. Their accommodation has a sealed floor, electricity, running water, a flushing toilet – things that the vast majority of the world’s children do not have.  And yet, still such puerile allegations of “inadequacy” are made. 

29. The allegations that arise since the Order was made do not persuade me that anything has changed. That is both supportive of the mother’s application and concerning. One would hope things might change, that the parents might begin to move forward towards some better address of their criticisms, concerns and ultimately their dealings with each other. The Court is beginning to lose all hope that it will be so. 

30. But Orders will be made today requiring that the parties attend upon Relationships Australia at (omitted) to engage in such Family Counselling services as might be assessed as appropriate and Family Dispute Resolution, if assessed as appropriate. 

31. I do believe that Relationships Australia or any other community based agency, is capable of achieving miracles. It is a matter for these parties to reflect upon the information they are given and to accept the need for change and to then be instruments of change in their own lives and attitudes. That would extend to and include contemplation and possible reframing of the allegations each makes and viewing them in a rational perspective. 

32. If the father’s allegations that the mother is heavy handed in her discipline – to put it at its most euphemistic – she needs to reflect upon that and change her behaviour forthwith. If ultimately findings are made that it is so as indicated by the father, it will determine not only that the children continue to live with their father, but that they have a fairly restricted relationship with their mother. Similarly, if the father’s behaviours are as the mother complains – entirely unsupportive of the children’s relationship with their mother, and conflating his needs, interests and agendas with the children’s best interests – a similar consequence will flow in reverse. 

33. I am satisfied that the children would benefit from a continuation of the arrangements that they have and as were ordered only 4 months ago. Those Orders should be extended to include the current holidays. The Christmas holidays had not been addressed in the misplaced hope the parties might resolve that one issue themselves or through their attorneys.

34. To the extent that the children need to be protected from harm, they need to be protected from the risks alleged by each parent. The risks are equal and equally compelling. They are both unacceptable. To that extent it is difficult to differentiate between them. 

35. I now turn to the additional considerations. 

Views

1. X and Y are both suggested to have a strong view to not spend time with their mother. However, the rational basis for Y’s view is not explored. That for X is suggested to be rooted in a history of “abuse”. However, his view is not suggested to be different to that which was expressed in August of 2014 and which view was taken into account in the Orders as made. Nothing is suggested to have happened in the intervening period.

2. It is again concerning – if not reprehensible – that these children have not yet met with the person representing their views. If that had occurred it may well be that some other course might be taken today or consideration by the Court might not have been necessary. 

Nature of the child’s relationship with each parent and other persons

1. I am satisfied on the evidence available – although each doubts it with respect to the other – the children enjoy an adequate relationship with each and certainly adequate in the case of the mother to support the relief she seeks being a continuation of the interim Orders.

The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time or communicate with the children

1. Neither can be criticised in that regard. If one has regard to the pre‑June 2012 drafting of the legislation, this provision was contained in subsection (4) and also directed the Court to also consider the extent to which a parent had interfered in the other’s capacity. That is alleged by the mother. It will be addressed at final hearing.

The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. The father complains that the mother’s child support payments are inadequate and irregular. It is not dispositive of this determination, however, even if it is so. The two are not directly connected. Time is not dependent upon payment of child support and payment of child support is not dependent upon time.

Likely effect of change including separation from either parent or other child or person

1. If the mother’s allegations are true, there would be a disastrous consequence for these children of terminating the children’s relationship – or at least X’s relationship – with her. It would cement the enmeshment that she suggests of these children in the father’s attitudes and would cut off what she describes as a healthy relationship. 

2. If the father is correct there remains the risk, equal to that which the mother asserts, that the children might be exposed to some form of “abuse” (although it must be noted that the majority of matters raised by the father as constituting abuse do not fall within the section 4 definition of abuse in the Act). However, the father’s evidence does not suggest that anything of substance has occurred since August. He suggests that the children have been bored, that demeaning statements have been made and that there has been reluctance to attend. There is no evidence to suggest that any active step has been taken to explore, let alone address, that reluctance.

3. This was one of the very things that it had been hoped the Independent Children’s Lawyer might proactively assist with, at least insofar as recommending to the parties agencies they might engage with. It would appear that neither the Independent Children’s Lawyer nor the attorneys for the parties have sought to guide the parents to any non-litigious means of addressing concerns, resolving issues or supporting the parents and their compliance with Orders. That is so notwithstanding the obligations of “Family Advisors” to do so and the reality that an attorney for a party falls within that definition.

4. That the attorney for each party has failed in their obligations is bad enough. That the Independent Children’s Lawyer has done nothing when the children’s interests are so clearly ignored and impinged by the parents is concerning.

5. I am satisfied there would be a detrimental impact upon these children of interfering in the present arrangement and no corresponding benefit.

Practical difficulty and expense

1. The parents live remarkably close to each other. However, section 65DAA(5) of the Act requires more than a simple consideration of logistic proximity. Section 65DAA(5) of the Act to a large extent codifies that which one might expect to see in play between parents if a cooperative parenting arrangement – a substantial and significant or equal time arrangement – is to be supported. Clearly it is not.

2. The parents have no capacity to implement arrangements full stop. They have the capacity, should they wish, but would appear to be lacking the will for it to be so. 

3. The parents have little capacity or desire to communicate or resolve difficulties. That may be for very good reason as the father alleges, or it may not. Indeed, the mother alleges a similar basis for the breakdown in their communication and cooperation. 

4. What is clear and apparent is that the conflict between these parties which has been occurring – based upon the school counsellor’s records – since at least 2006 – now nearly 10 years – has had a disastrous impact upon all four children and will continue and does continue to have a disastrous impact upon these children. When these parents choose to wake up to themselves and do something about addressing those concerns is a matter for them. However, the Court will advance the matter to a hearing as quickly as can be accommodated.

Impact of the arrangement of the child

1. I am satisfied this is already addressed.

Capacity of each parent and other persons to meet the child’s needs including emotional and intellectual needs

1. If either party’s evidence is to be believed, neither party has that capacity. Accordingly, whilst it is perhaps mutual disadvantage for the children, it would support a continuation of the present arrangement, determined – as it was – only some few months ago.

Maturity, sex, lifestyle and background of the children

1. These are children not adults. These are not even adolescent children.  They are 10 and 12.  They are suggested, on the father’s own evidence, to have lived in a cauldron of conflict whereby conflict and dysfunction has been circumjacent to their life since birth. In those circumstances, these are no doubt fragile children. They are also empowered children. 

2. They understand full well the dynamic between their parents and they understand full well how their parents feel about each other and about the other having a relationship with the children. I am satisfied that I can – to some extent – discount the only available evidence I have as to the children’s view – that of the father that X, in particular, has such a strong and strident view to spend no time with the mother.  That after 3 hours of attention, he agrees to attend and then there is no subsequent complain aids that view. The children’s views will be properly and fully explored with a Family Consultant’s assistance. 

3. The best I can do on the evidence that is presently available is be clear that these children – enmeshed as they are – need not be led to believe by anyone, including the Court, that what they ask for is what they will get.

Aboriginality

1. Neither parent identifies as Aboriginal or Torres Strait Islander, thus, nor do the children.

The attitude to the child and responsibilities of parenthood demonstrated by each parent

1. There are real concerns with respect to each parent’s attitude. However, that does not assist this determination.

Family violence

1. Clearly each alleges a significant history of coercive and controlling family violence. The mother suggests that the father has used and misused the Police and Local Court to engage in an agenda against her.  The father certainly has obtained Orders. There is nothing to suggest that they are not made on good basis. The father suggests that the Orders are entirely valid as are his complaints to the Police.

2. The more recent complaints – about the child or children being left at the mother’s home whilst the mother is at work or the Police being called to the school to mediate the child’s attendance with the mother– are an entirely inappropriate involvement of the Police and simply sets for these children a very negative view or perspective as to arrangements between their parents and especially with their mother.

Family violence orders

1. There are a plethora of family violence proceedings between these parents.  Unfortunately however, the Court – other than having copies of the Orders – is not informed of anything that relates to the circumstances in which any of the Orders were made, the evidence that was admitted, findings made by the Court or any other relevant matter.  Thus, it is difficult to take it into account other than to note that Orders have been made.

Whether it is preferable to make the order that will least likely lead to the institution of future proceedings

1. I am satisfied that the best I can do is to make clear and specific Orders. That is what was done in August 2014. I can also make Orders for the parties to engage in Family Counselling and Family Dispute Resolution services pursuant to Part II of the Act. I can make Orders to commission evidence and move the matter towards a hearing as expeditiously as can be accommodated, not because the parties deserve to use more of the Court’s resources than they already have, but because these children’s best interests deserve more than their parents and – sadly – the Independent’s Children Lawyer have been able to afford to them to date.

I certify that the preceding one hundred and thirty seven (137) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date:  20 February 2015

Geremia v. Harb, 2008 19764 “The parties have gorged on court resources as if the legal system were their private banquet table It must not happen again... Both sides have shown an inability to abide by court orders such that their access to this court should be restricted by the requirement to obtain leave.  Some day, a wise person in a position of authority will realize that a court of law is not the best forum for deciding custody and access disputes, where principles of common sense masquerade as principles of law”