Runcorn and Raine (No. 2)

[2008] FamCA 1021

FAMILY COURT OF AUSTRALIA

RUNCORN & RAINE (NO.2) [2008] FamCA 1021

FAMILY LAW - CHILDREN – Best interests – with whom the children spends time – where extensive Reasons for Judgment were delivered in relation to with whom the children live and parental responsibility – further submissions on amount of, and conditions for, spends time with orders –chaotic presentation by the mother appearing by phone – mother hung up on Court proceedings and was then unreachable – proceedings continued in absence of mother – best interests of children that mother spend supervised time and have phone and e-mail communication

Family Law Act 1975(Cth)

APPLICANT: Mr Runcorn

RESPONDENT: Ms Raine

INDEPENDENT CHILDREN’S LAWYER: Carter Naughton Rice

FILE NUMBER: BRF 2512 of 2006

DATE DELIVERED: 7 November 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 7 November 2008

REPRESENTATION

FOR THE APPLICANT: The Applicant father in person

FOR THE RESPONDENT: The Respondent mother in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Naughton Rice

Orders

UPON the Court ordering that the Orders made on 16 October 2008 and 7 November 2008 be consolidated with one sealed order

IT IS ORDERED ON 16 OCTOBER 2008 THAT

IT IS NOTED THAT the presumption of equal shared responsibility is, in the circumstances of this case, rebutted by reason of the best interests of the children N and J each born … May 2000.

Parental Responsibility

1. The parties shall each have responsibility for making day to day decisions in respect of the care, welfare and development of the children during the time that the children spend with each of them in accordance with these orders.

2. The father shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended)) in respect of each of the children, save that the father shall, prior to making the sole ultimate decision about any such issue:

   (a)Use his best endeavours to advise the mother in writing of the decision intended to be made;

   (b)       Seek the mother’s written response in relation thereto;

   (c)Consider, by reference to the best interests of the children, any such response prior to making any such decision;

   (d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.

3. The parties shall each do all such things, sign all such documents and each pay any charges or fees as are reasonably necessary to:

   (a)Keep the other informed of their residential address and a landline number, a mobile telephone number and an email address on or at which the children can be contacted whilst in the care of the other and, forthwith, of any changes in each;

   (b)keep the other informed of each and all doctors, health professionals, educational institutions, counsellors, therapists and extra-curricular activities which the children each attend;

   (c)authorise any person, institution or body referred to in the previous sub-paragraph to provide to the other parent any and all such information in respect of the treatment of the children, or their activities as the case may be, as the other parent might reasonably require;

   (d)have the children’s school provide to the other parent a copy of each of the children’s report cards, together with any other written report issued by the school in respect of either child;

   (e)authorise any school or educational institution, teacher, tutor or other educational professional to provide to the other parent any and all such information in respect of the progress of the children, including, but not limited to, their social, sporting and extra-curricular activities as, as the other parent might reasonably require.

4. Each of the parties shall do all such things, sign all such documents and pay equally all such government charges or fees that might be necessary to forthwith:

   (a)Include the father on all formal registrations of the birth of the children, including, but not limited to, the children’s birth certificates, as the father of the children and the surname “Runcorn” as the sole surname for each of the children;

   (b)refer to the children, both orally and in writing, on any occasion and in any context when it is necessary to do so, by the surname “Runcorn”;

   (c)refrain from referring to either of the children, either orally or in writing, on any occasion and in any context when it is necessary to do so, by any surname other than “Runcorn”.

Lives With

1. The children shall live with the father.

IT IS FURTHER NOTED THAT consequent upon a hearing conducted over five days in March 2008, the Court has today delivered extensive reasons. Those reasons include reference to the need, in the best interests of the children, to hear further from the parties and the Independent Children’s Lawyer, consequent upon each considering the Court’s reasons and these orders, in respect of the matters there identified with respect to the issues of the mother’s time and communication with the children and the nature and extent thereof. 

IT IS DIRECTED THAT

1. The matter be adjourned before Justice Murphy for hearing of those issues referred to in the above notation, to 10.00am on Friday 7 November 2008 in the Brisbane Registry of the Family Court of Australia.

2. By not later than 4.00pm on 4 November 2008 each of the parties, including the Independent Children’s Lawyer, file, by forwarding via email to the Associate to Justice Murphy at …

   (a)Any affidavit on which they would seek to rely, but only if considered necessary, and confined solely to the following issues:

   (i)The date of birth and state of health of the mother’s new child;

   (ii)Any impact same has had on the mother’s mental health, capacity to parent and the responsibilities of parenthood;

   (iii)The role, if any of the father of the mother’s new child in the mother’s household;

   (iv)The prospective role, if any, of that person in the children’s lives during any time spent by the children with the mother; and

   (v)The nature, extent and frequency of the time spent by the mother with the children in the approximate six months between the hearing of this matter and these Orders.

   (b)Draft Orders outlining precisely the contentions of each party and the Independent Children’s Lawyer as to the nature and extent of the time that the children should spend with the mother, and/or how and when the children should communicate, with their mother in light of the Orders made and reasons delivered today; and

   (c)       Brief written submissions in support of the Draft Orders sought.

3. For the purposes of any appeal, and, specifically, for the purposes of Rule 22.03(2) of the Family Law Rules 2004, the “last order made in the trial” shall be deemed to be the order made consequent upon the hearing on 7 November 2008, which such order will consolidate Orders (1) to (5) of these Orders with the Order made on that date with respect to time and communication.

IT IS FURTHER ORDERED THAT

1. 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 RESPECTFULLY REQUESTED THAT the Director of the Legal Aid Office Queensland give favourable consideration to providing, in the difficult circumstances of this case (including the self-representation of each of the parties, further legal aid to the Independent Children’s Lawyer and her counsel for the additional hearing contemplated by these Orders and any necessary work, reasonably ancillary thereto.

IT IS FURTHER ORDERED ON 7 NOVEMBER 2008 THAT

1. The children N and J (“the children”) both born … May 2000, shall spend supervised time with the mother at all such times as might be agreed in writing between the parties and failing agreement:

   a.At a contact centre, or otherwise at a place and under conditions agreed in writing between the parties with the first such period of time to occur, upon a written request from the mother being sent to the father and thereafter, the father taking all such steps as might be necessary to arrange for that time to take place at an appropriate contact centre or other agreed place with both parties participating in such processes as are required by that contact centre or other agreed place so as to enable that time to take place.

   b.Upon such arrangements being made, the other spend time with the children as might be arranged with that contact centre or other agreed place but not more frequently than each second week.

2. Should arrangements be made for supervised time with the children at a contact centre or other agreed place, and the mother not avail herself of that time for whatever reason, on three (3) consecutive occasions, (as confirmed in writing by the contact centre or other agreed supervisor), then these orders with respect to time shall lapse.

3. The mother be at liberty to communicate with the children:

   a.by telephone, on not more than three (3) occasions each week, not later than 7.30pm in the evening, and the father shall use best endeavours to ensure that the mother is kept informed of a telephone number upon which the children can be contacted;

   b.by email at all such reasonable times as she might desire and the father shall use his best endeavours to keep the mother informed of an email address at which the children can be contacted.

4. In respect of order 4 of the orders made on 16 October 2008, if either party refuses or neglects to sign any requested document necessary to give effect to such orders within seven (7) days of a written request to do so by the other party, a Deputy Registrar of the Family Court of Australia at Brisbane, is hereby appointed, pursuant to Section 106A of the Family Law Act, to execute all documents in the name of that party and do all acts and things necessary to give validity and operation to these orders.

IT IS DIRECTED THAT

1. The orders made today be consolidated with the orders made on 16 October 2008 and that a sealed copy of the consolidated orders issue as the orders in this matter.

2. A transcript of today’s proceedings be prepared and held on the court file.

3. The court forward a copy of the transcript, reasons and orders today to the parties.

4. The Independent Children's Lawyer also forward to the mother by mail, a copy of these orders. It is noted that the Independent Children's Lawyer will accompany those orders with a letter offering to assist the mother in facilitating any reasonable written request by her with respect to establishing the time with the children provided for in these Orders, should the mother desire such assistance.

5. Should the mother not request assistance from the Independent Children's Lawyer as contemplated by the previous order by 31 January 2009, and/or should the Independent Children's Lawyer notify the mother in writing before that date that the Independent Children's Lawyer is unable or unwilling to provide any further assistance to the mother, the Independent Children's Lawyer shall be discharged as and from 31 January 2009.

IT IS FURTHER ORDERED THAT

1. Further to order (8) made on 16 October 2008, the time for the filing of a Notice of Appeal in this matter shall be extended to 31 December 2008, being approximately 28 days after the anticipated receipt of settled Reasons for Judgment and the sealed orders herein.

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.

IT IS NOTED THAT

(a)The court shall send a text message to the mother’s mobile phone number to confirm her address for the forwarding of documents by the court and the Independent Children's Lawyer.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2512  of   2006

MR RUNCORN

Applicant

And

MS RAINE

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Between 10 and 14 March 2008 the hearing of the application with respect to parenting orders for N and J, each born in May 2000, took place before me.  I delivered extensive Reasons for Judgment on 16 October 2008. 

2. Toward the end of those Reasons for Judgment I said:

   "302.  These reasons will be delivered some six months after the completion of the hearing.  The delay is regrettable.  As a result of the surprising evidence of the mother's pregnancy to which reference has previously been made I intended to deliver these reasons after obtaining portions of the transcript as soon as possible.  Unfortunately, other responsibilities made that impossible.  Thereafter I was conscious of not delivering these reasons in the late stages of the mother's pregnancy or immediately after the projected birth of her child.

   303.  All being well, the mother's new child should, according to her evidence at the hearing, now be about a month or so old.  I have already referred to my assessment that this new child is highly likely to have a significant impact upon the mother, her capacity to parent, and among other things, arrangements crucial to the exercise of parental responsibilities.

   304.  Also, the mother's evidence relating to her apparent partner and his then future role in the life of the mother, the children, [T] and the new child, is less than clear to say the least".

3. As a result I made orders at that time with respect to parental responsibility and an order that the children live with their father.  I made directions as follows.

   “IT IS FURTHER NOTED THAT consequent upon a hearing conducted over five days in March 2008, the Court has today delivered extensive reasons. Those reasons include reference to the need, in the best interests of the children, to hear further from the parties and the Independent Children’s Lawyer, consequent upon each considering the Court’s reasons and these orders, in respect of the matters there identified with respect to the issues of the mother’s time and communication with the children and the nature and extent thereof. 

   IT IS DIRECTED THAT

   (6)The matter be adjourned before Justice Murphy for hearing of those issues referred to in the above notation, to 10.00am on Friday 7 November 2008 in the Brisbane Registry of the Family Court of Australia.

   (7)By not later than 4.00pm on 4 November 2008 each of the parties, including the Independent Children’s Lawyer, file, by forwarding via email to the Associate to Justice Murphy at […]

   (a)Any affidavit on which they would seek to rely, but only if considered necessary, and confined solely to the following issues:

   (i)     The date of birth and state of health of the mother’s new child;

   (ii)    Any impact same has had on the mother’s mental health, capacity to parent and the responsibilities of parenthood;

   (iii)   The role, if any of the father of the mother’s new child in the mother’s household;

   (iv)   The prospective role, if any, of that person in the children’s lives during any time spent by the children with the mother; and

   (v)     The nature, extent and frequency of the time spent by the mother with the children in the approximate six months between the hearing of this matter and these Orders.

   (b)Draft Orders outlining precisely the contentions of each party and the Independent Children’s Lawyer as to the nature and extent of the time that the children should spend with the mother, and/or how and when the children should communicate, with their mother in light of the Orders made and reasons delivered today; and

   (c)Brief written submissions in support of the Draft Orders sought.

   (8)For the purposes of any appeal, and, specifically, for the purposes of Rule 22.03(2) of the Family Law Rules 2004, the “last order made in the trial” shall be deemed to be the order made consequent upon the hearing on 7 November 2008, which such order will consolidate Orders (1) to (5) of these Orders with the Order made on that date with respect to time and communication.

   IT IS RESPECTFULLY REQUESTED THAT the Director of the Legal Aid Office Queensland give favourable consideration to providing, in the difficult circumstances of this case (including the self-representation of each of the parties, further legal aid to the Independent Children’s Lawyer and her counsel for the additional hearing contemplated by these Orders and any necessary work, reasonably ancillary thereto.”

4. It will be seen that those directions contemplated each of the parties forwarding the specified further material by 4.00pm on 4 November 2008. 

5. On 4 November 2008 the mother telephoned the Family Court National Enquiry Centre.  On 5 November 2008, my associate, telephoned the mother. 

6. My associate was advised by the mother that she was unable to file the material requested by the date specified in the directions.  My associate informed her that she should attempt to file that material as soon as possible so that I might consider its receipt at the hearing on 7 November 2008. 

7. The mother requested that the Court SMS her the Court's fax number.  An officer of the Court did so on 5 November 2008.

8. On 6 November at 12.47 pm material from the mother was received at the fax number provided.  The mother faxed some further material so that in total the material faxed to the Court comprised some 21 pages. 

9. The material faxed by the mother largely dealt with the mother's Aboriginal heritage.  It included an extract from a book and a genealogical diagram outlining her place in a family tree that had, it seems, Aboriginal connections. 

10. The mother makes mention of these proceedings and my judgment being "another form of 'stolen generation'".  She goes on to say:

    "I want to be able to, as soon as I am financially able to, to have your findings so far addressed by a senior legal team in the Aboriginal Legal Advisory about your fairness in judgment.

    [The father] has contravened the interim Court orders and prevented me from seeing my twin boys, [J] and [N].  You have done nothing about this at trial and in fact it appears so far by your judgment you, Justice Murphy, back [the father’s] actions."

11. In terms of the amount of time spent by the mother with the children subsequent to the trial, the mother says this:

    "I have seen my children three times now since your trial at the beginning of this year but only at their school, the last time being 5 November, only to be told the children's teeth are in urgent need of a dentist, and [J] already has a speech impediment now coupled by a heavy overbite of back teeth needs this to be urgently attended to, to help with his speech, which is already badly impaired.  [The father] said he did not have time to take them to the dentist and you Justice Murphy, see [the father] to be the fit and better parent to attend to the cares of my children.  Accordingly I ask that in your judgment, please request that he take them to a dentist."

12. In response to my directions the father filed an affidavit on 4 November 2008 together with draft orders. 

13. The Independent Children's Lawyer has not filed any further material. 

14. Prior to the commencement of the hearing the mother made contact with the Court to advise them that she was unable to attend.  The message I initially received was that she was unable to attend because she had just landed from Perth.  That may have been a misunderstanding because when she appeared by telephone she indicated that she had returned from Perth last week. 

1. I determined to hear the mother by telephone, notwithstanding the fact that, in light of the importance of the issues to be addressed and the significant notice which the mother had had of these proceedings, including the opportunity to read and consider my reasons for judgment, it would have been helpful, to say the least to have her here.  Notwithstanding those considerations, I granted to the mother the indulgence of appearing by telephone. 

2. Initially, my Court Officer was told that she would be appearing by telephone on the landline at the home of a friend.  Subsequently it transpired that her friend refused to permit her to use the landline. 

3. The message I initially received was that was because she was "too angry."  I raised that with the mother when telephone contact was made with her subsequently on her mobile, and she said it wasn't that she was too angry but rather that she was "too hyped up."  In any event, the participation of the mother proceeded by her using a mobile phone. 

4. She told me she was unable to attend personally because she had diarrhoea.  She told me that she had not provided to either the father or the Independent Children's Lawyer the material which she had faxed to the Court.  The Court provided, prior to the hearing today, a copy of that material to the father and Mr Linklater-Steele, counsel for the Independent Children's Lawyer.  Neither of them objected to that material being received in evidence. 

5. The mother sought initially to refer at length to that material.  I allowed her to do so despite the fact that, as it seems to me, the vast bulk of it relates to an issue not directly relevant to the issue for determination by me today. 

6. I made it clear during the course of her discussion of those issues that, having given her the opportunity to raise them with me, and having read them, nothing contained within them affected my decision previously given. 

7. My recollection of the evidence given at the trial by the mother, and a recollection that accords with the notes of counsel for the ICL was that the mother claimed a nexus with Aboriginal heritage as a result of a connection with Aboriginal people established through her adoptive father. 

8. She says that I'm wrong about that and misunderstood her. She says that she made it clear during the hearing that the connection with her Aboriginal heritage arises through blood relatives. It may be that my recollection and the notes and recollection of counsel for the ICL are wrong. Whatever be the correct position, I made it clear to the mother, and make it clear again in these reasons, that such Aboriginal connection or heritage as the mother has, although clearly a factor to be taken into account pursuant to s.60CC(3) of the Family Law Act1975, does not in any way, shape or form alter the reasons or findings otherwise contained in my initial reasons.

9. I attempted to have the mother address the issue live for my determination today. 

10. The mother told me that her position with respect to time was that she should have the children for five days a week and that she should also have the children for one half of the Easter school holiday period for a week and the middle school holiday, which I took to mean the June/July school holiday period, and two to three weeks at Christmas.  She said that such an arrangement provided equal time between her and the father. 

11. In simple and broad terms, the mother, in outlining such a proposal, sought to re-agitate precisely the issues that had been determined by me after the hearing and in the reasons to which she had access. 

12. I attempted therefore to ask the mother whether she put forward any alternative proposal for time in light of the reasons made by me and in particular the finding by me that the children should live with the father. 

13. The mother again returned to the same issue and proposal, namely that the children should live with her from Monday to Friday each week. 

14. That position might be difficult enough to sustain in circumstances where precisely that issue had previously been determined after a five-day hearing which had been the subject of extensive Reasons for Judgment.  In this particular case, however, that position took on elements of the bizarre in circumstances where the mother said that she had taken T, a teenage child of a previous relationship, to her adult daughter's place in Perth, and as the mother told me, she was now residing permanently in Perth. 

15. In answer to the obvious question, which is how one might sustain a Monday to Friday time relationship with the father if she resides in Perth, the mother informed me that she would return to, I gather, South East Queensland and would then "consider" whether T would also return to live with her and the boys in South East Queensland. 

16. I use the broad expression "South East Queensland" because I have not the slightest shred of evidence from the mother as to where she would live, with whom else she would live, how she would sustain those arrangements, how close such residential arrangements would be in geographic terms to the father and the like.

17. In my earlier reasons for judgment I said at paragraph 86 that:

    "It has been difficult to obtain a coherent account from the mother of many of the issues she raises.  Her presentation was, in general terms, chaotic.  She presented as the antithesis of the calm and stable parent that these children clearly, in my view, need.”

18. The circumstances just described add significantly in my view to the picture of chaos consistently presented by the mother in terms of her day to day life.  Once again, the picture presented by the mother today represents, in my view, the antithesis of the sort of stability and continuity that these children, each of whom it is conceded have special needs, so clearly need.

19. The proceedings today, just like the previous proceedings, were, however, to take an even more bizarre twist. 

20. In his affidavit filed on 4 November 2008 the father deposed to a conversation with T. 

21. It is first to be noted that that conversation was the first the father knew of the fact that the mother and/or T might be residing in Perth, whether permanently or for any period of time. 

22. Secondly, and more particularly, the father deposes:

    "I understand that [the mother] has not given birth to another child at all.  Also, I believe she was never pregnant to begin with and her claims of such were a fabrication based on the following:  (a) at no time in her recent phone calls to the children has [the mother] mentioned anything about having had a baby; (b) during the previously mentioned conversation with [T] in early October I asked him about his mother's baby and if she had had it yet.  [T] laughed and said, 'Baby? Huh?'  I explained that she had said at the trial that she was pregnant.  [T] said, 'Nah, she was never pregnant.  She's probably just saying that to make people jealous or something …'"

23. It needs to be mentioned that the pregnancy of the mother was a matter of very significant concern to me in the Reasons earlier delivered.  As I indicated there, it was a central reason for the delay in delivering Reasons in the first place.  My central concern, giving rise to the major part of the delay, was any effect that the delivery of the judgment might have on the mother's health and/or the health of her newborn baby if those reasons were delivered late in the mother's pregnancy or early in her new child's life.

24. Secondly, the fact that the mother would have the care and control of a tiny infant in the context of an unspecified relationship with the apparent father of the child was a matter which was clearly and directly relevant to the best interests of the boys and their prospective parenting arrangements.  I said in my earlier reasons:

    "208.  I am bound to consider the capacity of the mother to provide for, among other things, the emotional needs of the children and also her responsibilities to the task of parenting.

    209.  I consider the mother's failure to consider what, on any view, are clearly important ramifications for these boys of a new sibling and the impact of that on all concerned within a household in which the new child's father is to play an as yet unspecified role to be a significant failing in each respect."

25. That finding was in turn based on sworn evidence given by the mother, some of which was quoted from the transcript in my earlier reasons.  In particular, it ought be noted that I asked the mother:

    "Well, you would want to be doing a bit better than, 'Possibly,' if it is due in three or four months, so do I take it as, 'Yes', you're expecting - - -?---Yes.

    - - - a baby in three or four months?---Yes".

26. In light of the evidence provided by the father, which is, of course, based on a hearsay statement from a teenage child, I took this matter up with the mother during the course of her appearance before me this morning. 

27. I was particularly interested to note that the mother confirmed what the father had deposed to in terms of the possibility of T and, as it turned out, the mother, living in Perth.  That this is a profound and significant change of circumstances from that which was alluded to at any stage in the mother's material or during the hearing goes without saying. 

28. In the instant context though, it gave, in my view, apparent veracity to some of the conversation that the father deposed to with T. 

29. I would have thought that it went without saying to any vaguely responsible parent that it would be a matter of interest for a Court charged with a determination of children's best interests to ascertain whether the mother of those children, who purported to seek to care for them for significant amounts of time, would see that a new baby and a new sibling for those children would be a significant issue for the Court's consideration. 

30. During the course of the morning's proceedings it was necessary for me to ask the mother on two or three separate occasions not to talk over the top of me. 

31. I asked the mother about the baby.  The mother refused to answer.  I asked the mother again to answer the question. She again refused.

32. I then attempted to explain to the mother that the issue was important, primarily for the reasons just identified. 

33. I then asked the mother two specific questions - one, whether she had had a baby, and two, what were the care arrangements for that baby.  The mother commenced to ask me a question and to talk over the top of me and I demanded of the mother an answer to my question. 

34. Regrettably, at the time that final request of the mother was made, it was said by me in an angry tone.  The mother became angry herself and the transcript will reveal what was said in the intervening period.  The mother thereupon immediately hung up.

35. Despite the mother hanging up as indicated, I asked my Court Officer to telephone the mother back.  On the first occasion he obtained a voice message.  On the second occasion the mother was heard. 

36. The mother's reaction at that time can, I think, be fairly described as hysterical.  On at least a half dozen occasions I attempted to interrupt the mother by simply mentioning her name with the purpose of inviting her to further participate in the proceedings.  The mother's hysteria continued. 

37. The mother made a number of comments about me, this process and the Court, and hung up. 

38. Between approximately 11.40 and 11.45 am, on my instructions, the Court Officer made six separate attempts to telephone the mother again and was unsuccessful, on each occasion obtaining a voicemail.

39. For reasons identified at the time, which I will repeat now, I determined to further conduct the proceedings in the absence of the mother.  Among the reasons for doing so are:

    (1)The mother was fully aware of today's proceedings and did not attend personally.

    (2)The mother was granted the indulgence of appearing by landline but informed the Court that either her anger or her "hyped up" state resulted in the friend's landline not being made available to her.

    (3)The mother was granted permission to appear using her mobile phone.

    (4)The mother had provided to the Court, albeit late, extensive written material addressing what she considered to be relevant issues relating to the children.

    (5)The mother had put before the Court her proposals for time that she should spend with the children which were, in essence, a re-agitation of the issues that were live in the proceedings at trial.

    (6)The mother refused to answer the question which I had indicated to her was directly relevant to my determination about the best interests of the children in the context of the current proceedings.

40. The proceedings were thereafter conducted in the mother’s absence. 

41. The father's draft orders, filed in accordance with my earlier directions, provided for specific telephone time and for supervised time to occur every alternate weekend at a contact centre on a Sunday between 10 and 12 subject to contact centre availability with such time occurring until the children turn 12.  Those draft orders thereafter provided for a number of specific orders for time after the children turned 12.

42. Clearly enough, those orders contain a recognition of the need for the children to have a regular (albeit curtailed) relationship with their mother.

43. The Independent Children's Lawyer flagged a number of issues of significant concern with respect to these two children emanating both from the previous hearing before me and the events of this morning. 

44. It was submitted that it was significant that, following a trial and extensive reasons respectively participated and read, the material filed by the mother, in essence, had very little to do with the issues for determination today.  I might add that the material presented by her had very little relevance to issues which she sought to agitate which, as I've said, was essentially a re-agitation of the issues which had been heard and determined at the trial.

45. Mr Linklater-Steele referred to evidence at the hearing where the reporting forensic psychiatrist, Dr C, had talked about the difficulties in obtaining a coherent history from the mother. 

46. Mr M, the family report writer, in respect of whom the mother had made allegations of corruption and bribery, flagged the possibility of the mother's conduct undermining the father's role in the children's lives escalating. 

47. Mr Linklater-Steele submitted that the mother's behaviour and submissions this morning raise significant concerns about her continued psychological ill health.  Mr Linklater-Steele submitted that there was a possibility that the mother may in fact be "delusional".  It would not be appropriate for me to make substantial findings of that type without a solid evidentiary foundation and in proceedings conducted in the way in which they were this morning (and proceedings which, in any event, have a narrower focus than those at trial). 

48. What is of concern, however, is the profound uncertainty and chaos surrounding the mother and, it seems, all aspects of her life and its potential impact on the children.  It will be recalled that this was of profound concern to me during the hearing. That concern finds expression in a number of places in the reasons and, in turn, is cross-referred to a number of what I consider to be relevant statutory considerations.

49. Those concerns are dramatically heightened by the mother's evidence this morning, in particular the decision to relocate the child T to Perth, the decision to herself relocate to Perth, the unwillingness to give evidence to this Court about a matter considered by the Court to be vital to the determination of these boys' best interests, namely whether in fact, in accordance with her previous sworn evidence, she has given birth to a child and if so the care arrangements for that child. 

50. A litigant is entirely justified in being upset, angry and disappointed at a result adverse to that which they contended for at a hearing.  Moreover, a person with psychological issues might reasonably be expected, in some senses, to manifest some, at least, of those psychological issues during the course of a stressful hearing. 

51. It is a matter of considerable regret to me that I became angry this morning.  Whether seen as a form of self-justifying excuse or not, the fact remains that, on a number of occasions, it was necessary for me to ask the mother not to talk over the top of me; the mother’s refusal to answer, on more than one occasion, a question she knew I considered directly relevant and it was extraordinarily difficult to have the mother address any of the issues which I considered to be directly relevant to a decision about time for these children.

52. In light of all of the comments made by me today and the findings made by me in my earlier reasons, it seems to me to be utterly incomprehensible that the mother would refuse to answer questions about a matter which I considered to be vital to the determination of best interests on an earlier occasion and vital to a decision about best interests today.

53. Obviously enough, the orders to be made today with respect to the time the children spend with and/or communicate with the mother are based on the central findings with respect to the children's best interests determined by me and outlined in my earlier reasons. 

54. They are also based upon, again, obviously enough, the evidence and behaviour and manifestations of the concerns that I had about the mother earlier expressed which occurred this morning.

55. I have grave concerns that the mother will avail herself of time with the children in any coherent, regular or meaningful way. 

56. Indeed, on the current state of the evidence, it seems that the mother intends to live permanently in Perth with T and her adult daughter.  I received no information from the mother as to how time arrangements might work in those circumstances where, in accordance with my earlier reasons, the children would live with their father. 

57. As will be obvious from my earlier reasons and findings, I was, and I remain, extremely concerned that the mother will seek to undermine the role of the father in the children's lives and that behaviour will, as Mr Linklater-Steele submitted during the course of proceedings today, lead to allegations being made to the Department of Children's Services as has been the case in the past and was referred to in my earlier Reasons.

58. I consider, though, (again for reasons relating to the attachment to and relationship with their mother discussed in my earlier reasons) that the children should be afforded the opportunity to spend time with their mother should she choose to avail herself of that time. 

59. I am concerned that if she does not do so, that that will cause harm to the children.  I am particularly concerned about the effect on the children if the mother should make arrangements for time with the children but does not comply with them. 

60. That opens the spectre of making an order that there be no contact between the mother and the children by reason of the fact that the risk of emotional harm to the children is such that an unpredictable, chaotic regime of time is likely to cause the children (who have special needs) significant uncertainty and will likely impact on their emotional health. 

61. As against that, the children have rights to know, receive care from and develop a relationship with their mother. That right is caveated by their best interests, a determination of which includes assessing any risk of potential harm. On balance, it seems to me that the mother should be given the opportunity to spend time with the children should she so choose. 

62. My concerns about the mother's active undermining of the relationship between the children and their father, combined with what I have found to be her worrying psychological state (I am here seeking to use neutral language) remain and I think that there is some risk that the mother may seek to take the children to Perth. 

63. The evidence reveals that since orders were made the mother has spent time with the children on only three occasions in six months.  The mother herself says that is the case and the father confirms it.  Those occasions have been at school in the context of the children's after school care or other activities and, therefore, for a relatively short period of time. 

1. Balancing all of the matters to which I have referred both today and in my earlier reasons, in the statutory context referred to in the latter, it seems to me that the mother should initiate time with the children but that any time she spends with them should be supervised. 

2. The father and counsel for the ICL agree with my observation that I can take judicial notice of the fact that there are many more people wishing to use the facilities of a contact centre than there are places to regularly provide for them and that I can take judicial notice of the fact that a contact centre would not keep open a spot, as it were, for these children in the absence of both parties committing to that time and taking up the time once offered.

3. It seems to me the best I can do, given that I have ultimately concluded that the orders should make some provision for the mother to spend time with the children, is to order that time between the children and their mother be supervised, that it take place at a contact centre or otherwise pursuant to supervision agreed in writing between the parties upon a written request for time being sent to the father and thereafter the father taking responsibility for making arrangements at an appropriate contact centre and thereafter both parties participating in such processes as are required by that contact centre so as to enable time to take place.

4. By reason of the concerns earlier expressed about contact centres providing the time on an unlimited basis for a period of time, and also by reason of my concerns about potential harm to the children should the mother not avail herself of time in a regular and structured way, I will make provision in the orders that if arrangements are made and the mother does not avail herself of that time on three consecutive occasions (as confirmed by the contact centre or other agreed supervisor) for whatever reason, then the order with respect to that time will lapse. 

5. I will also provide that contact take place at all such times and in such manner as might be agreed in writing between the parties. The draft orders put forward by the father contemplate relatively significant amounts of time once the children turn 12.  The underlying philosophy behind those draft orders is, as I understand it, that, by that age, the children will have sufficient maturity to deal themselves, or at least partly deal themselves, with the various issues that I have discussed.  Because of my concerns about unpredictability and chaos, I don't propose to make specific orders as to what should occur in the future, but I will make the order just indicated to contemplate the possibility that, as the children get older, the parties may, themselves, determine arrangements in the children’s best interests.

6. It seems that the mother has, since the orders made in October, availed herself of telephone communications with the children.  I consider it important that she continue to do so, particularly in circumstances where, as she would have it, she is intending to live in Perth with T and her adult daughter. 

7. Mr Linklater-Steele submits that the order in the terms proposed by the father may, in effect, make a rod for his own back. I agree with that submission.  I will accordingly order that the mother be at liberty to communicate with the children by telephone on not more than three occasions each week, not later than 7.30 pm at night, and the father shall use his best endeavours to ensure that the mother is kept informed of a telephone number upon which the children can be contacted.

8. In addition, although the father indicates to me that (although having access to an email address) the children, at this stage, are of an age where they don't use email, it seems highly likely that if they follow the Australian norm communication by computer in some form or another will increase in its frequency and duration. 

9. I propose to order, that the mother be at liberty to contact the children by email at all such reasonable times as she might desire.

10. Finally, in my earlier reasons I made orders with respect to the children's surnames and made orders that gave effect to the children's registration by that surname on their birth certificates. 

11. The father expresses some concern that the mother will not comply with the obligation contained in those orders to do all such things and sign all such documents as might be necessary to effect formal registration of the surname that I have ordered. 

12. During the emotional phone call by the mother a number of things were said by her that indicated vehement disagreement with the order I made with respect to the children's surname, and in particular her objection to my not having arrived at a hyphenated surname. 

13. That, combined with the other issues to which I have referred, including the mother's attempt to undermine the father and the chaotic nature of the mother's presentation, I think it is highly likely that the mother will not sign such documents as might be required to give effect to those orders.  That being the case, I propose to order in accordance with para 6.1 of the draft orders filed by the father on 4 November 2008. 

14. I will also order that a transcript of the proceedings today be prepared and held on the Court file and a copy forwarded with the sealed orders to each of the parties.

15. I will also order that the orders made today be consolidated with those orders made by me on 16 October 2008 and that a sealed copy of the consolidated orders issue as the orders in this matter.

16. After discussions with counsel for the ICL, I record that the ICL is prepared to assist the mother – facilitating commencement of the orders for time. I will simply note that in the orders and will allow a generous period of time for that to occur, after which time the ICL will be discharged.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  20 November 2008