Ryeburn and Ryeburn

[2010] FamCA 297

FAMILY COURT OF AUSTRALIA

RYEBURN & RYEBURN [2010] FamCA 297

FAMILY LAW – CHILDREN – With whom a child lives

Family Law Act 1975 (Cth) Division 12A, s 69ZN
Child Protection Act 1999 (Qld)

APPLICANT: Mr Ryeburn

RESPONDENT: Ms Ryeburn

INDEPENDENT CHILDREN’S LAWYER: Grant & Associates

FILE NUMBER: BRC 11060 of 2007

DATE DELIVERED: 26 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 26 February 2010

REPRESENTATION

THE APPLICANT: In person by phone

SOLICITOR FOR THE RESPONDENT: Ms Stewart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Grant

Orders

IT IS ORDERED THAT

1. The matter be set down for final hearing before the Honourable Justice Murphy, extending no longer than for a period of two days.

2. The evidence in the trial shall be confined to evidence from Ms B, Dr V and Mr G.

3. The evidence of the parties shall be confined to an affidavit, which sets out the parties’ proposals for the living with and time spent with each of them. The affidavit will further include the parties’ reasons for seeking those orders (the latter not greater than three typed pages).

IT IS FURTHER ORDERED THAT

1. A family report be prepared by Ms B, which addresses specifically the issues of:

   (a)Relocation and the impact that is likely to have, whether beneficial or detrimental for the children, if the children are to continue to live with the mother;

   (b)Whether it is in the best interests of the children to live with their father in that event;

   (c)Whether, despite the warm relationship between the father and the children, there are nevertheless considerations directly relevant to the best interests of the children, that might impact upon the time that they spend with their father; or if they were to live with their father, with their mother.

2. The parties do all such things, sign all such documents, pay all such reasonable fees as are necessary so as to facilitate a report being prepared by Mr G (via the agency of the Independent Children’s Lawyer), such report as to his counselling with J, subject to the following restriction:

   (a)That nothing Mr G tells the court through the process of any such report, shall in any way breach any confidence given to him by J; and, in the event that Mr G certifies in writing to the Independent Children’s Lawyer, that the provision of any report jeopardises the confidence of J, or any past or future counselling of J, no such report will be required of him.

3. The matter be adjourned to the Magellan Registrar at a date and time to be advised in the Brisbane Registry of the Family Court of Australia, for the making of directions and listing the matter to final hearing.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11060 of 2007

MR RYEBURN

Applicant

And

MS RYEBURN

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This case is, unfortunately, by no means the only case which presents to this court in circumstances where any fair-minded Judge, or indeed, any fair-minded person, would come to the conclusion that children, in this case aged seven and five, are highly likely to be doomed, irrespective of what parenting orders are made by a court between their parents.

2. As but some examples of why that statement is justified in this case; these parties have been litigating now for about 10 years.  This case has been in this court’s system for five years, commencing its life on 15 June 2005.  Thus, this case has been in this court for the whole of H’s life, and for the vast majority of J’s life.

3. Quite what these parents thought they could achieve for their children by litigating in this court for five years, is utterly beyond me.

4. As further examples of the sort of considerations relevant to the further determination of this case, the Independent Children’s Lawyer, Mr Grant, indicates that no less than five family reports have been prepared by Ms B.  Two psychiatric reports have been prepared by a psychiatrist.  The matter has come on for trial, and gone away, on at least three occasions.  The time and public expense devoted to this case is, on any view of it, extraordinary.

5. The father has two older children who were, at some stage, part of the family constellation with the mother.  They are in the care of the Department of Child Safety.

6. The Department has had a very extensive history with this family, and Mr Grant tells me that, pursuant to his independent obligations to the children as an independent children’s lawyer, under the Family Law Act 1975 (Cth), he has made continual representations to the Department with respect to the potential for them to intervene in this family, by the use of State orders under the Child Protection Act1999 (Qld).

7. Thus far, the Department, who, it seems, have undertaken significant work with the mother, have failed to take any such action with respect to the children.

8. I do not mean, in saying that, to suggest a criticism of the Department.  It is well known that the legislation in Queensland can conveniently be described as “crisis legislation”, and the range of armoury available to the Department and the State courts, in circumstances where a conclusion is reached that neither parent of a child are likely to provide the most basic of adequate nurture and support for a child, are limited.

9. Indeed, the net result of such an application might, in many cases, be a child going into foster care.  The considerations relevant to that circumstance, and the emotional and psychological ramifications of that, have been the subject of much deliberation recently, firstly, in respect of the tragic treatment of Aboriginal children; and secondly, in respect of children removed from their families in the United Kingdom and brought to Australia and also with respect to other non-indigenous families in this country as well.

10. I am inclined to think that far too much time has been spent on this matter, and far too many public resources allocated to it.

11. I am at a loss to understand what remedies available under the Family Law Act 1975 (Cth) might assist these children in their future development.

12. Nevertheless, it seems to me that I am confronted with a difficulty:  two parties have, as is their democratic right, invoked the jurisdiction of this court.  There is no challenge to them having done so. Having validly invoked the jurisdiction of this court, it seems to me that this court is bound to hear and determine the dispute, the parameters of which are outlined by the respective contentions and counter-contentions of the parties.

13. That said, what is now plain, from Division 12A of the Act, is that the parliament is, firstly, acutely aware of the potential for there to be significant detriment to children, arising solely by reason of litigation about them.

14. With that in mind, the parliament has set forth, in that Division of the Act, a number of specific principles, included in which, are mandatory directions of court to guide its decisions.

15. Among those is, for example, a mandatory requirement for this court to give effect to a principle that, in determining the manner in which proceedings properly invoked in this court involving children, are to be determined, that the court is to “consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings”.

16. Mr Grant submits, and it is with respect, plainly correct, that the proceedings thus far, in their ghastly entirety, have had, and are continuing to have, a dramatically negative impact upon the children.

17. In that regard, he advises, from the bar table (as to which, see generally Division 12A) that Mr G, who is a counsellor practising outside of Brisbane, has been seeing J, and that Mr G has indicated to the independent children’s lawyer that the continuation of these proceedings are likely to be significantly detrimental to him.

18. It is, in any event, self-evident that, when parties whose family constellation has already resulted in two of the children being removed from their care and being placed with the care (however described) of the Chief Executive of the Department of Child Safety; five family reports; that these proceedings having a dramatically negative effect on the children.

19. The comments made by a very experienced psychiatrist Dr V in one of his reports also points clearly to that conclusion.

20. Further mandatory principles guiding the conduct of these proceedings are contained in the succeeding subsections of section 69ZN include the mandatory requirement that “the court is to actively direct, control and manage the conduct of the proceedings.”

21. In addition, the court is mandatorily required to ensure that proceedings are to be conducted in a way that will safeguard, relevantly, the child concerned, against child abuse.

22. The expression, “systems abuse” is frequently used in this court to describe the emotional abuse which occurs to children, when a multiplicity of interventions occur in their lives that, in summary, are likely to have a detrimental effect on their psychological or emotional wellbeing.

23. It is plain that further court proceedings here run that risk.

24. Next, relevantly, the court is mandatorily required to ensure that proceedings are “conducted without undue delay, and with as little formality and legal technicality and form, as possible”.

25. It seems to me arguable that the mandatory principles to be applied by a court, the general tenor of Part VII of the Act, and in particular, Division 12A, gives legislative licence to this court to determining that, despite the proper invocation of its jurisdiction, the court should, nevertheless, refuse to entertain a parenting application or response on behalf of parents, when regard is had to each and all of the matters earlier referred to.

26. I confess that, in the circumstances of this case, I am sorely tempted to make that finding, and to put an end to these proceedings for the sake of the children. 

27. However, against that, must be balanced the consideration earlier specifically referred to, namely, the obligations upon a court once its jurisdiction is properly invoked. Secondly, apart from the ridiculous, damaging and continuous allegations and counter-allegations made by the parties against each other, there is currently, before the court, I’m told, an application by the mother to, in effect, “relocate” to a place significantly geographically remote from Queensland.

28. That raises a number of separate and discrete issues, bearing in mind, of course, that, although cases such as that are described as “relocation cases”, they are but a specific instance of a parenting case.

29. Because it seems to me that this issue is discrete, and the ramifications of it for the co-parenting arrangement (such that the arrangement in this case might euphemistically be so described) I consider that this court should entertain the application brought by the mother, and the cross-application brought by the father.

30. However, I am not prepared to allow either further public resources to be used for these issues - which have now been trammelled for many, many years, for no discernable benefit to the children - to be reagitated.

31. Accordingly, by reference to the principles set forth in section 69ZN of the Act, I propose to place significant limitations upon the nature and extent of the proposed hearing.

32. I impose each and all of those limitations by reference to the obligations contained in the section just referred to, but also because of the human consideration that democratic systems, including the legal system, should never be used as a means by which children can be harmed.

33. The proceedings will be managed to a trial before me.

34. The trial will last no longer than two days.  The evidence in the trial shall be confined to evidence from the family reporter Ms B; the psychiatrist Dr V; the counsellor Mr G (whose prospective evidence I will make specific reference to in a moment).

35. The evidence of the parties will be confined to an affidavit which sets out their proposals for the “living with and time spent with” arrangements of each of them, and their reasons for seeking those orders, the latter, comprising not greater than three typed pages.

36. I have already referred to the fact that Ms B has previously prepared five reports.  I am acutely aware of the significant impost on public funds, that further reporting might require.  Nevertheless, it seems to me that the court, and therefore, the children, would potentially benefit from a further report from Ms B, that addresses specifically, the issues of relocation, and the impact that is likely to have (whether beneficial or detrimental) for the children if the children are to continue to live with their mother; whether it is in the best interests of the children for them to live with their father in that event; and whether, despite the observable, warm relationship between the father and the children, there are, nevertheless, considerations directly relevant to the best interests of the children, that might impact upon the time that they spend with their father, or if they are to live with their father, with their mother.

37. I will require each of the parties to do all that is necessary, and sign all documents that are necessary to request of Mr G, via the agency of the independent children’s lawyer, a report from Mr G as to his counselling with J, subject to this restriction: that nothing that Mr G tells the court via the process of any such report, shall, in any way, breach any confidence given to him by J, and in the event that Mr G certifies in writing to the independent children’s lawyer that the provision of any report jeopardises the confidence of J, or any past or future counselling or treatment of J, then no such report shall be required of him.

38. The father in these proceedings is currently incarcerated.  The father indicates that he anticipates being released from prison by March 2010. Mr Grant informs the court from the bar table that the solicitors representing the father in respect of his current criminal proceedings, indicate that a plea of guilty has been entered on his behalf to the charges he faces, and that they confidently anticipate the father will, indeed, be released next week, on the basis that his sentence will be one of imprisonment, but by reason of the time already served by him, he will be immediately released.

39. Accordingly, I will adjourn this matter to the Magellan Registrar, at a date and time to be advised, in order that the matter might be further managed toward a trial in accordance with the orders earlier made.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  16 March 2010