Ray and Chatters

[2012] FamCA 176

FAMILY COURT OF AUSTRALIA

RAY & CHATTERS [2012] FamCA 176

FAMILY LAW - CHILDREN – Orders by determination – Orders by consent – with whom a child lives -  with whom a child spends time – with whom a child communicates

Family Law Act 1975 (Cth)

APPLICANT: Ms Ray

RESPONDENT: Mr Chatters

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: CSC 712 of 2008

DATE DELIVERED: 9 February 2012

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 9 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamilton

SOLICITOR FOR THE APPLICANT: Stevenson & Associates

COUNSEL FOR THE RESPONDENT: Ms Benson

SOLICITOR FOR THE RESPONDENT: Bottoms English Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDENDENT CHILDREN’S LAWYER Lehmann Featherstone

Orders

1.Orders be made in accordance with the minute of consent order, signed by the parties and the Independent Children’s Lawyer, initalled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”, subject to these variations:-

(a)the time the child spends with the father for the Easter 2012 school holiday period shall commence on Saturday 31 March 2012 and conclude on Saturday 7 April 2012, such time shall be supervised by Ms S subject to her giving an undertaking to the court and shall be subject to the child sleeping in a bedroom different from that of the father and sharing that room with either Ms S or a female sibling or by herself;

(b)if the mother gives birth to her second child during the March/April week, that the child be returned to the mother or her present partner at 3.00pm on the afternoon after the birth of the mother’s second child.  The child shall live with the mother from 3.00pm that day to 8.00am the following morning and from 3.00pm on that second day until 8.00am on day three and the following day (with the intent that the child would meet her sibling without delay).

(c)in relation to the precise arrangements with regard to the hand-over and collection of the child as referred to in order 1(b) above, such times to be agreed between the parties, and leave be given to the parties to have the matter restored before me on the giving of twenty four (24) hours notice in the event that no agreement is reached;

(d)in relation to the Christmas school holiday period, order 3(d) shall be varied to provide that the four weeks shall commence on 26 December in 2012 so that the child spends Christmas Day at her mother’s home for 2012 and 2013 and alternating thereafter.

2.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.

3.Leave be given to the Independent Children’s Lawyer AND IT IS DIRECTED the Independent Children’s Lawyer forward to the Psychologist Registration Authorities the following:-

(a)a copy of these orders;

(b)a copy of the reasons upon which these orders are made;

(c)a copy of the affidavit and report of Ms C;

(d)

a copy of the transcripts of the tape recording of the sessions by

Ms C, as are available;

(e)a copy of the electronic disc of the recordings of those discussions and request that they consider whether the actions of Ms C are such that it needs enquiry and possibly sanction.

4.Leave be given for the Psychologist Registration Authority to obtain a copy of the transcript of the evidence of Ms C in conduct of any such investigation.

IT IS DIRECTED

5.Exhibit ICL1, ICL2 and ICL3 remain on the court file and copies be made available to the parties and/or Independent Children’s Lawyer and/or Registration Authorities at request.

6.The solicitor for the mother forward an electronic version of the minute of consent order to my associate within two (2) business days.

7.A copy of the undertakings given in court today be taken out and placed on the court file.

IT IS NOTED

8.It is intended the child will spend Christmas Day with the mother in December 2012, December 2013 and thereafter will be alternate Christmas Days and as the court understand it, will be December 2014 when the father spends Christmas Day with the father, with the child to be returned at 3.00pm and collected at 8.30am the next morning.

IT IS CERTIFIED

9.Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

By the Court

The Honourable Justice Benjamin

Exhibit “1”

BY CONSENT IT IS ORDERED

Living With

1.The child [J] born […] March 2002 (“the child”), will live with the mother.

2.The mother is to have sole parental responsibility for the child subject to Orders 12-17 herein.

Spending time/Communicating with Father

3.The child will spend time with the father, subject to Order 4, as follows:

a.for the first half of the Easter/First Term Queensland school

holidays in all even numbered years and for the entirety of those holidays in all odd numbered years;

b.for the whole of the July/ Second Term Queensland school holidays;

c.for the whole of the September/Third Term Queensland school holidays in all even numbered years and for the first half of those holidays in odd numbered years;

d)    for the first 4 weeks of the Queensland Christmas school holidays

in all even numbered years (and to include Christmas Day); and

d.for the last 3 weeks of the Queensland Christmas school holidays in all odd numbered years (and not to include Christmas Day);

with the father to be responsible for the cost of all airline travel of the child.

4.        The child’s time with her father is conditional upon:

a.throughout 2012 during any time the child spends in Western Australia, she will live at, and sleep at the home of the paternal grandparents, and the father will not sleep there overnight; and

b.at all times, the child will be given her own room for sleeping which she will not share with any other adult

c.however to be subject to the child’s wishes the paternal grandmother will supervise the Easter visit and in the event that the grandmother is unavailable to supervise, then supervision either be by the paternal grandfather or paternal aunt.

5.For the purpose of changeovers:

a)the mother will be responsible to deliver and collect the child from [Town A] airport; and

b)for the first visit in 2012, the child will be collected from [Town A] airport by her father or paternal grandfather; and

c)thereafter, the father will be responsible to collect and deliver the child to Perth airport.

6.Each parent will communicate with the child when she is in the other parents care:

a)via Skype once each week, for as long as the child wishes to speak, with the father to initiate the call between 5.30 pm – 6.00 pm AEST each Sunday;

b)via email at all reasonable times;

c)via ordinary mail at all reasonable times; and

d)by telephone at any reasonable time that the child requests and the other parent will facilitate such phone call.

7.For the purpose of the child’s communication with each of her parents:

a)the mother will ensure the child has an email account, which is her own, and will inform the father of the email address;

b)the child will not be given access to any email account through which the mother and father communicate with each other; and

c)each parent will provide the child with a separate room where she can enjoy her Skype calls in private, where they cannot be seen or heard by any other adult.

Restraints

8.Each parent is restrained from:

a)taking the child to any psychologist, counsellor or other therapist (subject to Order 9) without the agreement of the other parent;

b)monitoring, recording, or listening to any communication between the child and the other parent, or permitting any other adult to do so; and

c)questioning the child about arrangements or events that happened during her time with the other parent, other than in a general fashion.

9.Both parents are restrained from discussing with the child:

a)any of the allegations of abuse raised in these proceedings;

b)any issues arising from these court proceedings;

c)any issues arising about child support;

d)discussing any adult issues about the child during either parents communication with the child;

e)denigrating the religious beliefs or activities of the other parent or encouraging the child to reject/adopt them; and

f)both parents are restrained from denigrating the other or any member of the other’s family, or the other’s partner, to or within the hearing of the child, or permitting any other person to do so.

10.Further to Order 9, the mother is restrained from moving the child’s place of residence such that it is any further away from the father’s current place of residence without first informing the father at least 2 months prior to any intended move.

11.In the event the mother does move the child to a place of residence which is further away from the father’s place of residence than she is now, incurring additional travel costs or travel arrangements, the mother will be solely responsible for same.

Child’s Therapy

12.In the event the parties do agree that the child requires counselling or other therapy:

a)they are also to agree upon the issues for which such therapy is required and are to present the child to [Mr K] psychologist in the first instance;

b)in the event [Mr K] is unable or unwilling to see the child the parties are to seek and follow a recommendation from [Mr K] as to a suitable therapist;

c)In the event a recommendation is not forthcoming from [Mr K] or the person recommended is unable or unwilling to see the child, the mother will nominate 3 child therapists the father will nominate from that list, the therapist;

d)the therapists nominated by the mother are to practice solely in [Town A] (that is, are not to practice [in Local Government Area B]);

e)the child is not to be counselled by [Ms C];

f)the therapist is authorised, and requested to speak to each parent prior to engaging with the child, to obtain any relevant background information from each of them;

g)the parties will ensure the therapist is provided with:

i.a copy of the Family Report by [Ms T];

ii.a copy of these Orders;

iii.a copy of any Reasons in this matter; and

h)the therapist is authorised to discuss any matters, he/she considers appropriate, subject to his/her professional obligations to the child, with either parent.

Communication and Information sharing between Parents

13.In the event the child requires any major medical or dental interventions, other than in the case of emergency:

a)the mother will inform the father, as soon as possible after receipt of the relevant information, of the details of such interventions or procedure, and the name or names of any medical practitioners involved and;

b)the father is at liberty to contact any medical practitioner involved and discuss any relevant issue in order to be fully informed of the intervention or procedure required; and

c)the medical/dental practitioner is authorised to provide both parents with any relevant information.

14.Each parent is to keep the other informed of:

a)their residential and postal address;

b)their landline telephone number;

c)their mobile telephone number;

d)any phone numbers used/owned by the child which are different to the above;

e)their email address; and

f)any email address used by the child.

15.For the purpose of communicating with one another about the child:

a)the parents will utilise email in the first instance;

b)the parents will not permit the child access to their emails; and

c)the mother will inform the father, from time to time, via email, of any particular activities the child has engaged in and any details of her progress at school such as receipt of awards, etc.

Schooling

16.When the child is in the year before commencing high school the mother will provide the father, with at least 3 months notice of the choice of high school for the child, including any information she has about that school and her reasons for choosing it.

17.Any school at which the child attends will be at liberty to provide any information and discuss any issue about the child with either parent, subject to the guidelines of the school.

Parents Therapy

18.Within six (6) months of the date of these Orders, each parent will attend upon a qualified psychologist, and in the mother’s case, not [Ms C], for the purpose of:

a)gaining insight and skills into how to deal with any allegations of abuse or negative comments raised by the child about the other parent or members of the other parent’s family and each parent will provide their therapist with a copy of the Family report of [Ms T];

b)dealing with the issues arising from the breakdown of their relationship; and

c)dealing with the issues that have arisen during the course of these proceedings; and

d)the attendance of each parent upon the psychologist is continue for such time as recommended by the psychologist; and

e)at that time, each parent is to provide to the other a letter by their respective psychologist confirming their attendance upon the psychologist.

19.Within six (6) months of the date of these Orders, each parent will attend a parenting course such as is provided by Relationships Australia for the purpose of gaining skills in communicating effectively with one another about their daughter, including via email, without involving their negative emotions, and provide the other with a copy of their certificate of attendance/completion of the course.

Explaining Orders

20.At 10:30 am on Thursday 16 February 2012 these Orders will be explained to the child by [Ms T].

21.The Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ray & Chatters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 712 of 2008

Ms Ray

Applicant

And

Mr Chatters

Respondent

REASONS FOR JUDGMENT

1.These are proceeding between Ms Ray (“the mother”) and Mr Chatters (“the father”) in relation to their daughter J (“the child”).  The proceedings have to all intents and purposes been settled but for two issues.  The first is the time, if any, that the child spends with the father over the forthcoming Easter/first term school holiday period and the second is in relation to Christmas Day.  It is of value for me to set up a background so that it is clear where the proceedings were when they were settled, and I note that notwithstanding that the father has not been cross-examined that the mother, the father, and the Independent Children’s Lawyer have all asked me to make those determinations on the material before me.

2.I am conscious, very conscious that the mother has adopted this course in view of the pain of cross-examination, I can only describe it as that, and the father has not.  His evidence remains and is untested.  The father is aged 36.  He resides in Western Australia and is married with two children.  His wife is, as I understand it, quite young and did not provide evidence in these proceedings, or was not intended to provide evidence in these proceedings by him. 

3.The mother is aged 34.  She has remarried.  Her husband Mr L is aged 44.  The mother is due to give birth to her second child on 9 April 2012.  The father and the mother have been engaged in high-level conflict with regard to the child over many years.  That conflict has involved serious allegations of violence, each against the other, and I do not make any findings in respect of that as that evidence has not been tested, but it is significantly worrying that this child has had to endure that conflict.  The parents do not like each other.  They do not communicate well and they both, from what I have heard, speak badly of each other in the presence of the child and to the child. 

4.I make it clear to both parents that that sort of behaviour in the presence of this child is abusive and damaging to her and is in many ways stealing her childhood.  The level of conflict grew over the years, and there was an allegation or a disclosure by the child in 2006.  The mother to her credit investigated that and concluded that that allegation was not soundly based although it clearly rested in her mind and worried her in the years that followed.

5.Two thousand and ten was a significant year.  At the beginning of 2010 the child was taken to a police station by the father.  He asserted in an untested way that the child had made a disclosure to him.  The mother asserted that the child told her that that disclosure had been a lie which the father had imposed upon the child in an effort to change residence and have the child move with him to Western Australia.

6.Either way it is clear that both parties were outraged and the child was confused to say the least.  The child had up to that time being seeing a counsellor, Ms C, for therapeutic counselling.  Ms C, strangely and concerningly engaged in the forensic collection of evidence by way of cross-examining the child, and in a way to which I will allude later on.  The year progressed until August 2010.  In August 2010 the child initially engaged in some inquisitive behaviour which is typical of young children, and the mother accepted it as such although I am in no doubt she was concerned, bearing in mind the recent proximity of the child travelling to Western Australia.

7.A little later, a day or so, the mother found the child undressed in her bedroom and asked the child what had happened and the child asserted that she had been sexually abused by the father.  The mother believed the child and questioned her in respect of it.  Unfortunately, Ms C became involved again, and in a forensic examination of the child for the purpose of collecting evidence said she confirmed the disclosure.  There are a number of other forensic examinations by Ms C in the following days and weeks.

8.Ms C saw the child and recorded conversations from the child on 20 January 2010, 10 August 2010, 23 August 2010, 30 August 2010 and 6 September 2010.  I have had the opportunity of listening to those tape recordings and I am seriously concerned as to the role that Ms C played in bringing this litigation or in inciting this litigation.  Ms C also gave evidence of her time with the child on either 18 October 2010 or 18 November 2010 when again it seemed that she was endeavouring to obtain admissions from the child rather than therapeutic counselling of the child.

9.The mother was concerned by these allegations, and as I said was no doubt fortified by the views of Ms C.  The mother commenced proceedings and the time the child had been spending with the father over the school holiday period was terminated in view of the serious allegations made.  Unfortunately, the mother took some comments I made in January or February 2011 as a requirement to stop the telephone communication, when it was more an inquiry to determine whether it should continue or not continue.

10.As a consequence the child’s communication with the father ceased to all intents and purposes.  A family consultant prepared a report and I have read that report.  Let me say something to both parents in terms of these reasons.  The first is in cases such as this judges rarely make findings that something did happen or something didn’t happen.  In this case I would have been unlikely to make findings positively or negatively as to the risk of abuse.  I cannot assure the mother that abuse did not occur and I cannot make a finding that it did occur.

11.But I can say on the evidence that I had heard I would not have concluded, and I observe that I haven’t heard from the father yet, but on the evidence I have observed and heard so far I would not have made a finding that the child was at risk of sexual abuse in the unsupervised care of the father.  I would have put in place some form of supervision for two reasons: firstly to calm the mother who has to live and look after this child for most of the time; and secondly to meet the needs of the child as she articulated in the family report. 

12.I am also satisfied that this child is a forthright child.  She is not one to take a backward step despite her very tender years.  I have heard her voice on the tape recordings, the various tape recordings, and I suspect her teachers will have an interesting time with her into the future as she grows and develops her delightful but somewhat forceful character, and as such I intend to make the orders that are sought by the parties.

13.In terms of this coming Easter break there are two very forceful circumstances occurring:  firstly the need for the child to spend some time with the father, but time when there is somebody else around so that she feels safe.  I intend to direct that the father’s present wife give an undertaking.  If she does she can supervise the time and the father will spend from Saturday 31 March until Saturday 7 April with the child subject to a number of conditions.

14.Firstly that any accommodation they have has the child sleeping in a separate room or sleeping in a room with Ms S or one of the presumably infant girl children of Mr Chatters; and secondly that if the mother does deliver her second child in that time, the child is returned to the mother that afternoon, the following afternoon and the following afternoon and collected in the morning so that the child can not only meet her siblings from Western Australia, or re-meet her siblings from Western Australia, but she can start to form an association and relationship with her sibling in this state.

15.The second issue is the question of Christmas.  I am not so naïve as to realise Christmas is important for everyone for very broad reasons.  I intend to make Christmases year-about except in this year.  This will be the first Christmas J will have with her sibling and accordingly the four weeks from this Christmas will commence on 26 December, not earlier.  That means that J will have this coming Christmas and the following Christmas under the structure of these orders with her mother’s household, and then it will go to Christmases about.

16.I have no doubt that by that time J will be about 12 if my arithmetic is correct. 

I have no doubt that by that time she will be expressing herself forcefully as to what she wants to do over the Christmas holidays, and despite the best efforts of judges, mothers and fathers they will have to accommodate her strong views at that stage. 

17.Finally there needs to be something said about Ms C.  In this matter I am going to give permission and request that the Independent Children’s Lawyer provide a copy of these reasons, a copy of the orders, a copy of Ms C’s report, a copy of the tape recordings or the CD’s and a copy of the transcriptions of those to the Psychologists Registration Board and ask whether there ought to be an inquiry into her behaviour.

18.I do this for a number of reasons.  Ms C clearly was a significant platform upon which the mother pursued this claim, and was in many ways one of the reasons this matter could not be resolved by these parents earlier.  She had been engaging in therapeutic counselling of this child pursuant to a referral from the child’s medical practitioner.  It is odd that she did this despite having provided counselling to the mother.  I do not know whether that accords with the practices of psychologists or not, but it ought to be investigated.

19.The taping of the first conversation in January 2010 crossed the boundary from therapeutic counselling to the collection of evidence.  The interview of the child was focused on the behaviour of the father and seemed to be in many ways directed, and is troublesome in that context.  The child did not see Ms C again until August of 2010 when Ms C was informed that something had been said.

20.Ms C interviewed the child and recorded those interviews, and the clear purpose of those interviews was to gain evidence for some sort of forensic purposes.  The nature of the inquiries was again unusual.  The child was pushed to provide answers.  The child’s answers were often not accepted.  There was at one stage an assertion that the child had not told the truth, and I have not heard a counsellor say that before as far as I can recall. 

21.Ms C leapt to conclusions which at some levels defy common sense.  She talked about the child being afraid to make disclosure when in fact disclosure had been readily made to her.  In her report she described the child as saying that she was “scared” in two areas.  A careful listening of the tape does not disclose that such words were used.  When cross-examined about this Ms C said that was her assessment, or that they may have been outside the scope of the taping.

22.In many ways the report was a partisan report.  The psychologist was aware that a police investigation was underway.  The extent of that awareness is not clear because she prevaricated when giving evidence in that respect, but she was aware that that was being done and yet she persisted with her own forensic examination of the child which could have only been damaging of any evidence that was collected, and perhaps if there was significant evidence there, diluted the value of any such evidence.

23.When pressed on these points, the psychologist seemed to have no insight into what she was doing.  She didn’t seem to take time to reflect.  I am conscious that in a small community the medical resources sometimes have to be stretched and sometimes boundaries have to be pushed, but I am concerned in this case that those boundaries may have been more than pushed.  She informed the Court, and clearly to the surprise of Mr M, that she had been in contact with the guidance officer of the school and that he had told her that a disclosure had been made, and yet none of these disclosures were forwarded to the appropriate child welfare authorities.

24.I accept her evidence that there is no requirement to do so, and I wonder when the State of Queensland will take some effective steps to put in effective mandatory reporting which is necessary in cases such as this, but one would have thought a psychologist with her background would have made those reports to the relevant child safety authorities to ensure that there was a proper and effective follow up. 

25.I intend that these reasons first of all are published in an anonymous form so that my criticisms of the state laws in Queensland can be readily read by those who are interested, and more importantly that these reasons can be taken out and made available to a registration authority should they choose to pursue those matters. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 9 February 2012.

Associate:     

Date:              9 February 2012