Sawer & Hugh (No. 3)
[2009] FamCA 516
•10 June 2009
FAMILY COURT OF AUSTRALIA
| SAWER & HUGH (NO. 3) | [2009] FamCA 516 |
| FAMILY LAW – ORDERS – recovery order – best interests of the child – where child has run away from court ordered residence to the home of the paternal grandparents FAMILY LAW – CHILDREN – With whom a child should live and spend time with – best interests of child – emotional abuse of a child by the father – where father is not a party to the proceedings but the paternal grandparents who are aligned with the father are party to the proceedings FAMILY LAW – EVIDENCE – non application of Evidence Act 1995 (Cth) |
| Evidence Act 1995 (Cth) Family Law Rules 2004 (Cth) r 6.10 |
| Cowling v Cowling (1998) FLC 92-801 Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422. R & R: Children's Wishes (2000) FLC 93-000. |
| APPLICANT: | Mr and Mrs Sawer (Snr) |
| RESPONDENT: | Ms Hugh |
| INDEPENDENT CHILDREN’S LAWYER: | Verney Walker & Co |
| FILE NUMBER: | LNC | 511 | of | 2008 |
| DATE DELIVERED: | 10 June 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 10 June 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Mr Lewis |
| SOLICITOR FOR THE RESPONDENT: | Temple-Smith Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Walker |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Verney Walker & Co Lawyers |
Orders
IT IS ORDERED:
That the paternal grandparents return the child J born … June 1996 to the mother, she being the person with whom J is to live pursuant to paragraph 3 of the Order made on 12 March 2009.
That for the purpose of implementing paragraph 1 of this order, the grandparents deliver J to the mother at Unit 1, C Club, by 8.00 p.m. this evening.
That the paternal grandparents be and are hereby restrained from causing, permitting or suffering the child’s father, Mr Sawer, and/or the father’s partner, Miss B, to play any part in the transport of the child back to the care of the mother or to accompany the child for any part of that journey.
That the oral application of the mother for a recovery order and the oral application of the grandparents for J to live with them are otherwise dismissed.
My reasons be transcribed and, when transcribed, each party be provided with a copy.
IT IS DIRECTED:
That my associate send a copy of my reasons for decision to Ms N, family consultant.
IT IS FURTHER ORDERED:
That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.
AND IT IS NOTED for case management purposes that this matter is listed for 13 October 2009 at 9.00 am for directions as to a final hearing, such mention to be by video link between the Melbourne Registry of the Court and the Launceston Registry of the Court.
IT IS NOTED that publication of this judgment under the pseudonym Sawer & Hugh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: LNC 511 of 2008
| MR AND MRS SAWER (SNR) |
Applicant
And
| MS HUGH |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the child J born in June 1996. The proceedings are between the mother, Ms Hugh and the paternal grandparents, Mr and Mrs Sawer who, for ease of reference I will describe as the grandparents. J’s father was previously a party to the proceedings but, on 12 March 2009, he withdrew all of his applications and ceased to participate. The circumstances of him doing so and the basis for the current parenting order, whereby J and his twin sisters, E and H born in January 1999, live with the mother and spend no time with the father, are set out in my reasons for decision delivered on 12 March 2009.[1]
[1] Sawer & Hugh (No. 2) [2009] FamCA 496.
Applications
The applications which I am required to determine today are both oral applications brought urgently yesterday and arise out of J having run away from home last Thursday 4 June 2009. He is currently with the grandparents.
The mother, for whom Mr Lewis of Counsel appears, seeks the immediate return of J to her care and a recovery order to implement that return if necessary. Otherwise, the mother does not seek to disturb the current parenting orders which are those made on 12 March 2009, 24 April 2009 and on 7 May 2009. Pursuant to those orders, the grandparents have been entitled to spend time with the children. However, now is not a time during which J should be in the care of the grandparents. He is only with them now as a consequence of having run away from the mother’s home. The spend time orders and the hearing to consider further orders in favour of the grandparents were structured around the grandparents being absent from Tasmania, on a caravan holiday to Queensland, for three months commencing tomorrow afternoon. The grandparents opposed the mother’s application for a recovery order or the immediate return of J to her care.
The grandparents’ oral application is that J live with them for the time being. Initially, the grandparents’ application was that J live with them for two weeks. During those two weeks, the grandparents expected that there would be an amicable resolution as between the mother, the father (who is a non-party) and themselves. In this context, the paternal grandfather submitted “it is impractical for [J] to stay with us permanently”. It was proposed that J would travel with his grandparents for the next two weeks, en route to Queensland, and then travel by air unaccompanied back to Melbourne. There was no firm indication that J would then return to the mother’s home. The grandfather’s submissions did not take the matter any further than that he would arrange for J’s flight to be met by a male relative.
Today, the grandparents recast their application so that J live with them permanently, or until it is decided that he can live elsewhere and preferably (they say) between the home of the mother and the father (who makes no application for that to occur). It was submitted that, in the meantime, J would live with the grandparents in S and catch the school bus to S School which is about 50 minutes each way. It was not clear to me whether the grandparents were proposing to cancel their trip to Queensland or were considering taking J out of school until September 2009. It was clear, however, that the grandparents were assuming that some amicable arrangements would be arrived at in the short to medium term whereby the three children, or even just J, would reside week about between the households of the mother and the father (who is not a party and who seeks no orders). The grandparents’ applications were opposed by the mother.
Independent children’s lawyer and his position on the applications
Mr David Walker, solicitor, is the independent children’s lawyer. He was appointed pursuant to a request made by Benjamin J on 18 February 2009 His role is to form an independent view, based on available evidence, of what is in the best interests of J, H and E, and then act in these proceedings in what he believes those best interests to be.[2] Mr Walker is not a legal representative retained by the children and he is not bound by any instructions from them.[3] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[4] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[5]
[2] s 68LA(2) Family Law Act 1975 (Cth).
[3] s 68LA(4) Family Law Act 1975 (Cth).
[4] s 68LA(5)(d) Family Law Act 1975 (Cth).
[5] s 68LA(5)(e) Family Law Act 1975 (Cth).
After J ran away from home and in the absence of either the mother or the grandparents having made any application, Mr Walker requested that this matter be listed urgently on Tuesday 9 June 2009. Most helpfully, he swore an affidavit setting out what he understood the facts to be, his role in the matter, what J had imparted to him and what he had attempted to do to remedy the situation. It was an entirely proper course to take and resulted in the matter being mentioned before me, via telephone link up, and my receiving the oral applications of the other parties.
From discussion with the paternal grandfather today it is apparent that he misunderstood the role of the independent children’s lawyer insofar as Mr Walker is to act in what he, not anyone else, perceives to be J’s best interests. Mr Walker is not bound to follow any instructions from J. At the telephone hearing on 9 June 2009, the paternal grandfather initially had J in the room to listen to the proceedings. Mr Walker agreed that it was inappropriate for J to be a party to the telephone mention on 9 June 2009.
I am satisfied that Mr Walker has sought J’s views and put them before the court in a perfectly responsible manner. It is also apparent that Mr Walker has been the recipient of correspondence by, and on behalf of, the father which has been framed in a less than courteous manner and to which he has nonetheless responded when he regarded it in the best interests of the children to do so. I am satisfied that J’s interests, and those of his sisters, have been well served to date.
Mr Walker supports the mother’s position that J be returned forthwith to her care.
Conduct of the hearing
The hearing today was conducted before me in Melbourne with counsel for the mother, Mr Lewis, and the independent children’s lawyer being linked in by telephone from Devonport and the grandparents participating by video conferencing from the Launceston Registry of the Court. The grandparents live in W which is about 70 kilometres from Launceston. It was their preference to appear by video link from the court rather than by telephone from their home. Also present in court at Launceston was the father’s partner, and mother of his youngest child, Ms B. She is a solicitor but in this instance made it clear that she did not appear on behalf of anyone. She merely sat in court to observe. I was advised that, late in the proceedings, the father entered the court room and also remained to observe. I was informed that during today’s hearing, J was occupying himself at the local swimming pool about two blocks from the Registry.
It was agreed that I would pronounce my orders at the conclusion of the hearing and deliver these reasons subsequently and not in the presence of the parties. I do so. This is a sensible course having regard to the hearing having concluded at about 4.30 pm, the cost of video link up between the Melbourne and Launceston registries and the fact that J had already been at the swimming pool for an extended period.
Evidence and agreed facts
Because of the urgency with which the proceedings were brought before the court, the capacity of the parties to adduce evidence was curtailed. However, there was some agreement as to pertinent facts.
The agreed facts were as follows:-
·J has been on school holidays for the last two weeks and is due back at school on Monday 15 June 2009.
·On Sunday 31 June 2009 and whilst all three children were spending time with the grandparents for the last weekend before the grandparents were due to leave Tasmania for a three month holiday, the children were taken to the home of the father, Ms B and the children’s sister for a visit. Given the ambiguity of the statement[6] from Ms B – that ‘the children attended our home Sunday evening and spent time with [their sister C] and their father. Each of the children requested when they could return to spending time with us’ – both the mother and the independent children’s lawyer were initially concerned that J, E and H, had been left alone in the presence of the father contrary to orders of the court. In particular, contrary to paragraph 2(b) of the Order made on 7 May 2009, which provides that the grandparents’ time at Launceston with the children is conditional, inter alia, upon neither of them causing, permitting or suffering the children’s father or anyone on his behalf including Ms B to remove the children from the direct care of at least one of the grandparents. However, the grandfather stated that he and/or the paternal grandmother remained with the three children at all times.
[6] Email communication from father’s partner, Ms B, to mother’s solicitors dated 2 June 2009 being annexure “B” to affidavit of David Frederick Walker sworn 5 June 2009.
·J and his sisters were returned to the mother at McDonalds Family Restaurant at M at 7.00 pm on Sunday 31 May 2009.
·On Thursday 4 June 2009 J left the mother’s home without notice to her and made his own way, in inclement weather, to a relative from whose home J called the grandparents and the paternal grandfather collected him.
·Following discussions between the grandparents, the mother, the independent children’s lawyer, the police and J, it was agreed that J could remain at the grandparents’ home in W pending the court making a decision about what ought to happen.
·On Tuesday 9 June 2009 J wrote a letter note which he gave to the grandfather and upon which the grandfather relied at the hearings on 9 and 10 June 2009. It reads as follows[7]:-
[7] Exhibit “GF1”
I love mum but I am not living with her anymore because she won’t listen to me when I try to discuss these things. I just don’t get on with her and she doesn’t care what I want at all. And you may think that’s just the opinion of a child but that’s seriously what she is.
On the other hand Dad who is wonderful teaching me, [E] and [H] and he is extremely good with the girls. He is a great father to me, [E], [H] and [C].
And also Dad will let me call or visit mum whenever I like within reason but it is never the same when I’m with mum, it’s a totally different story. I won’t have anything to do with Mum when she won’t be sensible.
If you decide that you will send the police down to drag me back to mum…. Well your wasting your time, My time and everyone else involved because I won’t be staying there. I really don’t want to stay somewhere on my own but I am not staying there!
·The grandparents are due to leave Tasmania at 5 pm on Thursday 11 June 2009 and will be driving, with a caravan, to Queensland. They expect to return in late September 2009. The matter is next adjourned before me for mention on 13 October at 9.00 am.
·Unfortunately, Ms N, family consultant, is on leave until Monday 17 June 2009 when she returns to the Hobart Registry. She is the designated family consultant. In that capacity, she has prepared:-
oa Parent and Children’s Issues Assessment dated 27 November 2008 which deals with her preliminary observations and views of the mother, father, J and his sisters; and,
oa memorandum dated 6 May 2009 about her impressions of the grandparents in the context of the grandparents having made an application on 22 April 2009 to spend time and communicate with the children.
Ms N was also in court, via video link between the Launceston and Hobart registries of the court, on 24 April 2009 when the first set of orders were agreed to and sought by consent, entitling the grandparents to spend time with the children.
·Pursuant to paragraph 5 of the Order made on 7 May 2009, J is to be assessed by Dr A, psychiatrist, on 3 or 4 August 2009 but there is no earlier appointment available at which Dr A could see J either in Melbourne or Hobart.
·J wants to spend time with his father. Whilst it was not a matter of agreement, there was nothing to suggest that J was averse to continuing to spend time with the grandparents in either W or as part of their holiday en route to Queensland.
·J in doing well at school and is due to commence term three on Monday 16 June 2009.
These are proceedings to which Division 12A of Part VII of the Act apply. Section 69ZT excludes from these proceedings various divisions and chapters of the Evidence Act 1995 (Cth) which deal with general rules about giving evidence[8], cross examination[9], documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. That means that the rules of evidence in relation to the inadmissibility of hearsay or opinion evidence by non-experts or the admissibility of business records do not apply to this case.
[8] With the exception of ss.26, 30, 36
[9] with the exception of s 41 relating to improper questions
Section 69ZT(3) provides that in exceptional circumstances and having regard to various matters such as the importance, nature and subject of evidence, probative weight and natural justice, I can decide that certain excluded provisions of the Evidence Act 1995 (Cth) should operate in the proceedings. I have not been asked to, and nor have I made such an order.
Section 69ZT(2) of the Act provides that the court can give such weight (if any) as it thinks fit to evidence which is admitted as a consequence of the non-application of provisions of the Evidence Act 1995 (Cth). I will do so.
In exercising my discretion to accord weight to evidence, I take into account what is fair including the ability of parties, such as the self represented grandparents, to arrange affidavits at short notice. I take into account the absence of an opportunity to test the evidence by cross examination. It is largely a matter of common sense.
The mother relied, by way of background, on the material which had been before the Court on 12 March 2009. She also relied upon two paragraphs from a document which purported to be an affidavit sworn or affirmed (the jurat clause is defective) by the father on 10 June 2009. Those paragraphs, prepared by the father, read as follows[10]:-
8.David Lewis has repeatedly asked me if I would abide an Order of the Court if my time with the children was re-instated.
9.I advised David Lewis and advise the Court that I am happy to abide by the Orders of the Court in so far as they do not conflict with [J’s] wishes. I am not prepared to force [J] to return to his mother against his will, any more than I would force [J] to spend time with me against his will. Sending [J] back to his mother only to have him run away is not safe.
[10] Exhibit “WI”
The grandparents relied on the letter from J which was Exhibit “GF1” (quoted in full above) and also on the following paragraph from the document prepared and settled by the father[11]:-
I admit having a very short fuse as far as these proceedings are concerned. I have the best interests of my children at heart but I admit that I cannot contain my anger and frustration over these ongoing and protracted proceedings. My Doctor advised me not to put myself back in the Court system – it is too stressful for me and I am likely to say and do things I will regret. When I supposedly “walked out” on these proceedings that was not my intention. I specifically asked my then lawyer Charmaine Gibson to cease acting for me and to ask that the matter be heard on the affidavits that myself and my partner had filed. My position was clear from those documents. I apologise for the fact that I simply cannot deal with this Court in person.
Miss Gibson did not conduct the case in the manner described by the father. As my reasons for decision that day make clear, Miss Gibson was content for all of the father’s applications to stand dismissed and for him to be regarded as a non-participant. I also commented on the lack of affidavit evidence by the father.
[11] Exhibit “GF2”
The grandparents also wished to rely upon the balance of the document prepared and settled by the father. I have the whole document because it was handed up by counsel for the mother and parts of it were relied upon by consent, as indicated above. The mother and the independent children’s lawyer ask me not to accept the balance of the document as proof of the facts or matters asserted. They agree that I can read it, take note that it is what the father says and that the grandparents adopt it in its entirety but that I should not have regard to it as proof of what it asserts. Alternatively, and save for those parts of the document prepared and settled by the father (extracted above), that I ought to accord the balance of the document little or no probative weight.
I am satisfied that, given the non-application of parts of the Evidence Act, the document produced by the father is evidence in the proceeding once a party seeks to rely upon it. The issue is how much, if any, weight I accord it in my deliberations on the relevant issues.
The relevant issue is whether I should order that J return home to the mother having regard to J’s best interests as the paramount, but not only, consideration and the primary and additional matters to which I am directed by Section 60CC(1) of the Act.
In exercising my discretion to accord weight to the balance of the father’s document, I take into account the following matters:-
a)The father was a party, indeed the applicant, in the child proceedings until he withdrew; I am satisfied, pre-emptively, on 12 March 2009. In the absence of corroborative evidence, I do not accept that the father discharged his solicitor and walked out of her office whilst really intending to proceed with his application He seeks no orders in relation to J or J’s sisters notwithstanding that he and his partner, Ms B, are aware that J dearly wants to spend time, if not live, with him;
b)At the time of the father’s withdrawal from proceedings, there were very many unresolved issues regarding his behaviour with the children, his ability to put the needs of the children above his own needs and his capacity to parent generally. When I say unresolved, it is perhaps more accurate to regard them as matters which required some explanation by the father with a view to the court being satisfied that the behaviour would not re-occur;
c)The father has made representations by himself and through others that he will not or cannot attend court. It is a recurrent theme. In particular:-
i)In the context of the husband being required[12] to attend court personally on 12 March 2009, on 11 March 2009, his partner Ms B swore that[13] “[the father] is unable to afford any more legal fees. Unlike [the mother] he is not legally aided. [The mother] receives all Family Tax benefits for the 3 children despite the level of care that [the father] has. [The father] has instructed me that he cannot afford the cost of instructing a lawyer to appear in Hobart and understood that the matter would proceed by way of electronic communication. He refuses my financial assistance in this regard.” Ms B’s statement fails to address the fact that Benjamin J’s order required only the father to be present at Court in Hobart, not his lawyer. It ignores the fact that the father could represent himself. The partner’s affidavit does not indicate any reasonable basis for the father’s alleged understanding that the matter could proceed by “electronic communication.” With the benefit of hindsight, I am satisfied that the father was merely seeking to avoid coming to court rather than being unable to transport himself to the Hobart Registry.
[12] paragraph 5 of the Order of Benjamin J made 18 February 2009
[13] Affidavit of Ms B sworn 11 March 2009, paragraphs 15 and 16
ii)On 16 March 2009 the father’s partner, Ms B wrote to the independent children’s lawyer stating[14], inter alia, “[the father] has indicated and I believe him that he will not set foot or participate in parenting applications before the Family Court again.” And “As a significant person in these children’s lives if [the father] will not participate I am contemplating filing my own application.”
iii)In an email dated 26 March 2009 to the independent children’s lawyer[15] the father said:-
I will not set foot in a court, amongst the reasons (sic) the fact that I am no longer able to endure the proceeding…
iv)On 4 May 2009 the family consultant, Ms N interviewed the grandparents and then recorded[16] “[the grandparents] see their son’s main mental health issue now as being his having a “court phobia” and say that he cannot cope and therefore “blows up”. And further, “From their descriptions, any further psychiatric evaluations of [the father] could consider whether he suffers from a manic depressive illness or variant. If [the father] seems to rejoin the proceedings, the Court should have the benefit of an assessment to consider whether he should be represented by a ‘next friend’.”[17] In this context, I note that the position of a case guardian under Chapter 6, rule 6.10 of the Family Law Rules 2004 replaced the appointment of a next friend under the now repealed Orders 15 and 23 of the old rules[18].
v)On 9 June 2009 the paternal grandfather informed the Court that the father would not participate in the proceedings because his doctor had told him not to do so. There was no evidence to support this assertion. It was also stated by the paternal grandfather that the father had said that he would submit to a psychiatric assessment of himself (the psychiatrist was not identified) provided that he could be assured that he would regain his time with the children.
d)This morning the father prepared the document the balance of which the grandparents seek to rely upon as evidence of the facts and matters asserted therein. It is a not a document that can be filed in the proceedings because, even if the jurat had been correctly completed, it purports to be filed by a non-party to the proceedings, that is, the father. It is not filed in support of any application.
[14] Annexure “C” to affidavit of David Frederick Walker sworn 21 April 2009
[15] Annexure “G” to affidavit of David Frederick Walker sworn 21 April 2009
[16] Memorandum of meeting with Family Consultant May 2009, dated 6 May 2009, page 2
[17] Memorandum of meeting with Family Consultant May 2009, dated 6 May 2009, page 4
[18] now repealed, Family Law Rules 1984.
I note that the covering letter and the document prepared by the father are somewhat at odds with the father’s attempt to portray himself as someone who is unable or unwilling to participate in proceedings. The covering letter, which is addressed to the Registrar of the Court, asks, inter alia, for the document to be submitted in time for today’s hearing and “[b]ecause I am living in [L], I am unable to mail this affidavit in time for the hearing today. However my partner (referred to in the Affidavit) will be able to hand up the originals to the Court at the Launceston Registry today at 2.15 p.m.” I note that the document is endorsed as having been prepared and settled by the father. The father’s production of the 21 paragraph document, and his effort to have it before the Court, belies his inability to be involved or participate in the proceedings.
At the commencement of today’s hearing, it became apparent that the father’s partner was in Court. When I asked her in what capacity she attended, she referred to the possibility of the father being represented by a “next friend” but made no application for the appointment of a case guardian. She clarified that she was merely present to observe and offer support to the grandparents. She remained out of view of the video monitor.
Finally, at approximately 4.00 pm this afternoon, which was about 30 minutes prior to the conclusion of the matter, the grandfather informed me that the father was “in court” and “available to speak to” or words to the effect. I did not see the father but, accepting that the paternal grandfather was correct, the father’s attendance at Court belies his inability to be involved or participate in the proceedings as well as the accuracy of his statement to the independent children’s lawyer on 26 March 2009, that “I will not set foot in a court, amongst the reasons(sic) the fact that I am no longer able to endure the proceedings […].
I note that paragraph 4 of the document prepared by the father refers to “reports and affidavits from my G.P. Dr [I] as to my inability to attend further proceedings and the impact these proceedings have had on me.” No such reports or affidavits were produced. There are references to Dr I in a report of the psychiatrist, Dr S, dated 7 September 2004.[19] There is mention of Dr I treating the father from 19 January 2000 to 17 July 2004, but I am not aware of anything further.
[19] Annexure “B” to affidavit of David Frederick Walker sworn 4 March 2009, pages 9 and 10 of the report
I accept the submission of counsel for the mother and the independent children’s lawyer that I ought to accord the document no weight. Legal proceedings in this court are a very serious endeavour. I cannot think of any subject matter more precious than orders affecting one’s children. It is not for the father to interfere in proceedings from which he has withdrawn voluntarily. He is either in or out of the proceedings; he cannot walk around the parameter and expect to be heard when he calls from the sidelines. If he seeks orders then he should apply for them. If, by virtue of being a person with a mental or physical disability, he needs a case guardian, then the appropriate application should be made as an adjunct to the application specifying the child orders he seeks. The father is better equipped than most litigants. He had a solicitor until recently, Ms Gibson, and his partner, Ms B, is a legal practitioner who takes a keen interest in the case and has contemplated being an applicant in her own right. I can only assume that if no application is made for a case guardian, the father does not, or those who advise him do not, think that he fits the criteria of a person under a disability provided for in Chapter 6 of the Family Law Rules 2004 which is:-
person with a disability, in relation to a case, means a person who, because of a physical or mental disability:
(a) does not understand the nature or possible consequences of the case; or
(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.
I accord the balance of the document produced by the father no weight in terms of it providing proof of the assertions contained in it.
The legal principles
I apply Part VII of the Family Law Act 1975, as amended in July 2006 by the Family Law Amendment (Shared Parental responsibility) Act 2006, following the legislative pathway as set out by the Full Court in Goode & Goode[20], a decision of Bryant CJ, Finn and Boland JJ, delivered on 15 December 2006.
[20] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422
Before setting out the steps in an interim hearing, the Full Court in Goode’s case acknowledged some comments of a previous Full court in Cowling’s case (1998) FLC 92-801, as apposite. It acknowledged that the procedure for making interim parenting orders will be an abridged process where the scope of the enquiry is “significantly curtailed” compared to the ultimate hearing. It said (at paragraph 68):-
Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
In this case, the relevant facts are not in dispute (see paragraph 14 above). In the following passage the Full Court noted the status quo is not to be preferred over any other disposition. It said (at paragraph 72):-
where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the acre arrangements for the child.
The Full Court continued (at paragraph 73):-
That is not to say that stability derived from a well-settled arrangement may not ultimately be what the court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
For ease of reference, s 60CC(3)(d) requires consideration of the effect of any changes on a child’s circumstances and s 60CC(4) requires consideration of “the extent to which each of the child’s parents has fulfilled or failed to fulfil, his or her responsibilities as a parent” and has taken or failed to take the opportunity to participate in major long term decisions or to spend time with the child or has facilitated or frustrated the other parent doing so. Section 60CC(3)(m) requires consideration of any other fact or circumstance that the court thinks relevant.
A consideration of the section 60CC matters that are relevant
I must consider the s 60CC matters that are relevant, as to a child’s best interests, and if possible, make findings about them. Section 60CC(2) sets out the primary considerations, s 60CC(3), the additional ones.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents.
This section requires a prospective assessment so, to that extent, it is a restatement of, but different from, the values which are included as objects of the legislation found in s 60B(1)(a) and the underlying principals found in s 60B(2).
The role of the grandparents in J’s life is very important. The objects provided for in s 60B(1) may be regarded as the core values of the legislation. The principles which underlie the objects, which are set out in s 60B(2), are more specific but not exhaustive. They include that, except when it is or would be contrary to the 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).
The principles clearly recognise expressly the right of J to communicate with and know the grandparents and to be cared for by or live with them if that is in his best interests.
There is nothing in the evidence which leads me to question that it is in J’s best interests to have a meaningful relationship with the mother. The issue is how that relationship can best be protected.
The mother is accepting of the children having a meaningful relationship with the father but she is at a loss as to how to implement the time that the children, including J, could spend with the father given that the father will not abide orders of the court if the orders do not accord with what he wants. At all relevant times the mother has sought that there be regular and frequent time spent between J and his sisters and the father with the only proviso being that the children are returned to her in accordance with orders of the court. Nonetheless, given the father’s behaviour to date, there must be an issue about the extent to which the father’s influence on, and involvement in the lives of, the children can be of benefit to them.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The family consultant has already identified parental conflict as a very real risk to the children’s emotional well being. In November 2008, she made the following observation[21]:-
The conflict between the parents appears to be relentless. The consequences for the children on their emotional and social development are likely to be very detrimental. The degree of sadness expressed by [J] is of clinical concern. If he continues to have the excessive sadness while he develops into his teenage years, the prognosis for his own long-term mental health is grim with significant risks. The anxiety expressed by the girls is also a cause for significant concern. However, the girls are more likely to be amenable to some counselling supports. They also have a stronger supportive relationship with their mother which may prove protective to some degree
[21] Child and Parent Issues Assessment by Ms N dated 27 November 2008, page 7
The family consultant’s assessment identified the father’s behaviour in relation to the children, including J, as abusive. She expressed the following opinion:[22]
Although it is acknowledged that the children have happy times with their father, their views about their parenting arrangements cannot be seen as sound, clearly expressed, independently formed views wanting to have additional time with their father – due to their need to please him and to avoid his reactions towards them if they do not comply with his wishes. Whether [the father] consciously intends this or not his behaviour involving the children must be described as emotional abuse. It is recommended that [the father] seeks professional assistance in reviewing how his behaviour is experienced by the children.
[22] Child and Parent Issues Assessment by Ms N dated 27 November 2008, page 6
The evidence of the father’s behaviour is relevant because, as I will discuss below, the grandparents give every appearance of having become advocates for the father. However, they do not seem to be able or motivated to moderate the father’s actions. They appear to be accepting of his unacceptable behaviour. The grandparents do not see the father as having done anything wrong; they only see him as having been wronged against, by the mother and by the administration of justice including this court, the criminal justice system and the police. Accordingly, there is an issue about the extent to which leaving J in the care of the grandparents exposes him to what Ms N described as “emotional abuse” at the hands of the father either directly or by proxy.
I am mindful that the precipitator to these oral applications is that J ran away from the mother’s home. He encountered heavy rain but, thankfully, came to no physical harm. The grandparents are certain that, if I order that J return to the mother’s home, J will run away again. Likewise, the father says “I have very grave concerns if [J] was forced to return to his mother that he would simply run away again.”[23] I have no doubt that there is a risk that J will run away again. I have no doubt that the father and the father’s partner, Ms B, have imposed a very strong expectation on J to do just that. In fact, if J does not run away, he is likely to have to justify to that side of the family why he did not do so. Hopefully, however, the fact that the grandparents have left Tasmania, the requirement that J attend school and the knowledge that the father can be arrested if he tries to take possession of J without one of the grandparents being present, will provide sufficient disincentive to J so that he will not place himself in harms way again by running away from the mother’s home.
[23] Document prepared by the father, paragraph 18.
In the event that J refuses to remain in the mother’s care, it is most likely that the court will make a notification to the child welfare authorities with a view to J being accommodated independently of the mother and the father.
J’s views
Pursuant to s 60CC(3)(a) I have regard to any views expressed by J and any factors (such as his maturity or level of understanding) that are relevant to the weight it should give to the child’s views.
As is apparent from the above extract, the family consultant doubts the soundness of J’s views. Her observation was that:
The children appear to be focussed on their father’s moods and on keeping him from becoming upset or depressed. […] It was evident that [J] hopes that having a week-about parenting arrangement for the girls [which is what the father sought until he withdrew his application] will result in his father being happier and therefore [J] would be happier and less stressed as well. He does not wish to live primarily with his father.[24]
[24] Child and Parent Issues Assessment by Ms N dated 27 November 2008, page 6
I am satisfied that J’s views have firmed since November 2008 and that he is now pining for the father who he perceives is suffering without him.
Once a child's views are ascertained, the next step in interpretation and assessment of these views requires a balancing of the views against the applicable primary and additional considerations which are relevant to the child's welfare. This process was is described by the Full Court in R v R, in relation to children’s wishes, as follows:-
42. […] the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.
54. […] There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best interests.
I consider that, in the circumstances of this case, in the discussion by the Full Court in R v R, reference to ‘wishes’ may be read interchangeably for ‘views’.
I accept that J has an overwhelming desire to restore his father’s happiness. It is an entirely inappropriate burden for him to bear but that does not make it any less real for him. The submission of the independent children’s lawyer and the mother was that J is most burdened when he is exposed to the father or the father’s partner, Ms B. I accept that submission. I note that J ran away from home within days of the grandparents having taken J and his sisters to the home of the father and Ms B.
I also accept that it is possible that, once J returns to the mother’s care, he will be distracted from his unhappiness by his sisters and school life and his view of life may improve, at least to some extent.
It seems to me that there would be some relief for J if this decision is explained to him by the family consultant, Ms N. This explanation would not be given in any therapeutic sense but merely be an explanation in terms he can understand that a decision has been made requiring him to return to his mother’s care for his own good and in the absence of the father having made any application for orders to the contrary. If this explanation can be given, I would hope that the independent children’s lawyer could participate at least by observing as it is Mr Walker who is left to deal with the children in between decisions.
I give real weight to J’s views. He is of an age and his views are sufficiently strong that it would be inappropriate not to do so. However, I do not regard them as determinative because I share the concern of the family consultant, the mother and the independent lawyer that J’s views are formulated as a result of the father’s manipulative and emotionally abusive behaviour.
J is entitled to the opportunity to formulate views without the burden of being responsible for the father’s happiness and well being. I do not know how that can be achieved. I cannot see it being achieved by the mother and the involvement of Ms N and Dr A is for the purpose of assessment rather than therapy. It is possible that Dr A may, in the process of assessing J, take J through some reality testing of his views and perceptions. At the moment, what J wants is to be cared for by the father and that is simply not achievable given the father’s refusal to abide parenting arrangements and orders that do not accord with what the father wants.
I recognise J’s views as being strong and heartfelt but I am also satisfied that they are ill-informed and to act in accordance with them would be contrary to his best interests.
J’s relationship with the mother and with the paternal grandparents
Pursuant to s 60CC(3)(b), I have regard to the nature of the relationships between J and the mother and J and the grandparents.
I am satisfied that J has a strong relationship with the mother which he perceives is secure enough to withstand him walking (or running) away or appearing to repudiate it in favour of his relationship with the father. That said, J’s relationship with the father is likely to be the most dominant relationship in J’s life and that would be closely followed by J’s relationship with his sisters.
The paternal grandparents have not usurped the parental role. Their application filed on 22 April 2009 seeks orders to operate only “until such time as physical time between the Father and the children recommences” and then for a minimum of two telephone calls per week, for the last weekend of each calendar month and for some unspecified ‘extended’ time during school holidays. Now their application is for J to live with them but only until an arrangements can be reached between the mother and the father.
In May 2009, the family consultant commented that[25]:-
If [the father] is always present during any time that the children have with their grandparents, it will be difficult for any of the children, especially [J], to build up an independent supportive relationship with them. It is important that some of the time together is just for the children and the grandparents. This need not be an entire weekend; it could be that they share a meal once per week in a neutral public venue.
[25] Memorandum of meeting with Family Consultant May 2009, dated 6 May 2009, page 4
I have no evidence about the consolidation of the relationship between J and the grandparents. However, my experience of the grandparents over the last four court hearings, being 24 April 2009, 7 May 2009, 9 June 2009 and today, is that they have become advocates and apologists for the father. Initially the grandfather was flustered and uneasy about making an application for J to reside with him and the grandmother. That has now changed but I regard the grandfather’s initial response as telling in terms of how the grandparents see their relationship with J. They see themselves as a conduit between J and the father. It is likely that is how J regards them notwithstanding that he is no doubt fond of them too.
J has an infant sister, C, who is the daughter of the father and Miss B. There is every indication that J loves his little sister. Miss B complains about the devastation that her daughter and J feel by virtue of being separated. I am confident that the separation could be managed well so neither feels devastated. However, C is somewhat of an attraction which the father and Miss B hold and each has permitted the children, including J, to believe that the mother and the court are making C as well as themselves suffer. There is likely to be much that Miss B could do, by encouraging some constructive insight by the father on his role in the situation, which would be of benefit to her daughter.
Parental capacity and attitudes to parental responsibilities including the willingness and ability to permit J to have a meaningful relationship with others
Pursuant to s 60CC(3)(c) I have regard to the willingness and ability of the parents and the grandparents to facilitate, and encourage, a close and continuing relationship between the J and the other parent and grandparents.
Pursuant to s 60CC(3)(f) I also have regard to the capacity of the mother and the grandparents to provide for J, including in an emotional and intellectual sense.
Pursuant to s 60CC(3)(i) I have regard to the attitude to J, and to the responsibilities of parenthood, demonstrated by the mother and the grandparents.
I am satisfied that the mother’s is willing to promote a meaningful relationship between J and the father and between J and the grandparents. It is the father’s behaviour which is the impediment.
My assessment of the grandparents is that they have permitted, if not encouraged, J to believe that the predicament of him not being able to spend time with the father is the fault of the mother when, in reality, it is a situation for which the father must bear most if not all of the responsibility. That does not reflect well on them. It is not that they are badly disposed to the mother, it is that that they are unable or unwilling to identify the major deficits in their son’s personality and behaviour.
The expert assessment of J by Dr A has not been commenced. I expect that the assessment will inform the court significantly about how J’s needs will be best met but, for the time being, this information is not available.
I regard the mother as doing the best that she can. I am confident that if J had specific complaints about the mother, they would have been raised by the grandfather over the last two days or written about by J. I do not regard the complaints by J in the letter which is Exhibit “GF1”as indicative of any shortcoming on the part of the mother. She has committed herself to certain arrangements whereby J can attend a prestigious school in L at which he is succeeding. She has the interests of two other children and a partner to take into account as well as J. Clearly she loves J. I do not doubt her commitment but the father’s actions provide many obstacles to the mother. Whereas the mother recognises the need for J to spend time with the father, the father is not prepared to assume even the most rudimentary responsibility of returning the children to the mother at the time specified by orders of the Court. He is only prepared to abide by the orders of the Court in so far as they do not conflict with J’s wishes and he is not prepared to force J to return to his mother against his will. There is little doubt that he considers that he is arbiter of J’s wishes.
There seems little prospect of the father’s behaviour being modified at least insofar as the mother, the grandparents and J have to contend with it. The father has refused to return to Dr S, the forensic psychiatrist chosen by the independent children’s lawyer as an expert to assess both parents in 2004. The evidence of Dr S is old but I am not convinced that it is out of date. The following paragraphs from Dr S’s report of September 2004[26] resonate in the current circumstances:-
It appears to me that [the father] is an egocentric and entitled man who seems largely incapable of taking responsibility for the consequences of various inappropriate or intemperate acts. He attributes his predicament to court processes, and the various and or negligent actions of various others ranging from his former mother in law to judges.
His world now seems to be imploding. Other than his partner and his GP, he seems to have alienated almost everyone else. The court proceedings with his former wife and his contact with his children (especially [J]) have become the central organisers to his existence. Almost everything else has withered away, with the possible exception of his partner (but as she appears to be assisting him a great deal in the conduct of this case, one has to wonder whether his case is a major part of the currency of the relationship).
Although there have been periods of depression and thoughts of self harm, I would see these as principally the manifestations of the underlying Personality Disorder rather than constituting an actual psychiatric illness.
The situation is a troubling one. [The father] appears to be unable to tolerate being bettered in any way. He is prone to act disproportionately and impetuously. There seems to have been an increase in the frequency of those types of behaviour during the course of the year.
Personality Disorders are not amenable to treatment. In any event, it is unlikely in the extreme that [the father] would see the origins of his various difficulties as coming from within.
[26] Annexure “B” to affidavit of David Frederick Walker sworn 4 March 2009, page 12 of the report
I mention the assessment of the father’s personality here because the impact of the father’s behaviour on the children creates real problems for the mother in her role as a parent. As far as the grandparents’ application is concerned, I cannot lose sight of the fact that their position has moved progressively closer to that of the father so that the father’s behaviour is relevant to their case in the context of their uncritical acceptance of it.
As I mentioned above, the grandparents are accepting of behaviour by the father vis-à-vis the children and the mother which is obviously unacceptable. By way of example, I refer to the assessment of the grandparents on 4 May 2009 by the family consultant, Ms N, at which the grandparents discussed the criminal assault perpetrated by the father on the mother of which he was convicted and incarcerated. The family consultant recorded[27]:-
[The paternal grandparents] said that they have never experienced difficult behaviour from their son. When asked about his police record, they had a number of examples as to how he had been unfairly treated by the police. They have never witnessed violence by [the father] but are aware that he has broken hand bones on a number of occasions, because he is “not tolerant of idiots”. They believe that he was “set up” when he was charged with assault of [the mother] and that he served three months jail for accidentally hitting her with a car seat. They believe that the police “hate him” but they try to tell their son that he has to “live with the system”. They fully share his lack of respect for the police. Both grandparents appear very saddened and concerned in describing their son’s difficulties.
[27] Memorandum of meeting with Family Consultant May 2009, dated 6 May 2009, page 2
The above observation led the family consultant to include the following passage in her evaluation of the grandparents[28]:-
[The paternal grandparents] have a long history of giving their son unconditional support in all aspects of his life, both positive and negative. They do not appear to ask whether [the father] has contributed to some of the difficulties over his life span. They are extremely concerned for his welfare and appear to feel helpless to assist him at this time. They are likely to blame outside agencies for any problems experienced by their son.
[28] Memorandum of meeting with Family Consultant May 2009, dated 6 May 2009, page 3
The family consultant’s conclusion accords with my own.
Most recently, being 9 and 10 June 2009, the paternal grandfather sought to excuse or minimise wholly unacceptable conduct by the father. The family consultant described the conduct in her assessment in November 2008 as an incident which caused the twins anxiety and distress. The family consultant recorded[29]:-
On another occasion the police attended the father’s home and, “he sweared a bit… dad got real angry.” When [the father] took refuge on the roof of the main residence, additional police were called to attend. The twins were very fearful that their father would fall off the roof. They also heard him threatening to jump; “if you guys don’t go, I’ll jump… he would have died.” They were very fearful for his safety.
[29] Children and parents issues Assessment by Ms N dated 27 November 2008, page 2 of 8
However, the grandfather informed me that the police had “verbally apologised” to the father for inappropriately being at his residence, given that it is private property. Any consideration by the paternal grandfather of the fearfulness of the girls at the prospect of their father falling to his death was conspicuously absent. There was not the slightest comment about the father having acted dangerously or imprudently. The purpose of the grandfather’s evidence was to minimise and excuse the father’s conduct. There was no recognition that the conduct was inappropriate.
In the four occasions on which the grandparents have come before me in these proceedings, they have progressively become apologists for the father’s conduct. This is a matter to which I give weight in this interim proceeding in assessing the capacity of the grandparents to care for J even in the short term. It does not reflect well on them.
Effect of changes in J’s circumstances
Pursuant to s 60CC(3)(d) I have regard to the likely effect of any changes in J’s circumstances, including the likely effect on him of any separation from his mother and sisters with whom he has been living and grandparents with whom he and his sisters have been spending time..
I am satisfied that it is not in J’s best interests to be separated from the mother, his sisters or to cease to attend his school. The grandparents propose that J catch a bus to school from their home which involves a journey of about 50 minutes each way. No one addressed me on extra curricular activities or school sport that may require J to stay late but I assume that the grandparents would attend to that by car if need be. It appears that they are prepared to forgo their three month holiday to remain in W to care for J for as long as they think is necessary before the mother and father can reach an amicable arrangements whereby the children live week about between the parents’ households. The problem is that they have not thought through the consequences. Not even the father claims that week about time is appropriate. In November 2008 the family consultant recorded that:[30]
the father says that week-about is no longer feasible due to the parental conflict and that the children should primarily be with one or the other parent. He proposes that the children live with him.
[30] Children and parents issues Assessment by Ms N dated 27 November 2008, page 5 of 8
I accept that the grandparents are well intentioned. However, their perspective is very limited and prioritises their son’s interests over the interests of everyone else, including J.
The grandparents’ proposal would also separate J from his sisters, H and E. That is not what he has wanted previously, for instance, Ms N made the following observations in November last year when J was living (contrary to court orders) predominantly with the father and only seeing his sisters each alternate weekend unless they visited the father’s home on the intervening weekend[31]:-
[J] wants to have more time with his sisters. For [J], his distress was most evident when he was describing his concern about his father being unhappy and depressed. He said that his parent’s separation has been “pretty bad for me” and tearfully said “dad’s always pretty upset much... lying on the couch, red eyes, he goes to his room”. [J] described being “really upset” when his dad went to jail and “I didn’t see him for ages”. [J] said that more recently his dad “gets upset and in a bad mood” because “he works and has to go away” and then doesn’t see the girls “for 4 weeks or something”.
[31] Children and parents issues Assessment by Ms N dated 27 November 2008, page 3 of 8
Pursuant to s 60CC(3)(g) I also have regard to J’s maturity, lifestyle and other characteristics. He is a sad and troubled 13 year old boy who is in his first year of high school. The impact on J of his father’s depression and incarceration, as he described it to Ms N, is tragic. I accept the evidence of the family consultant that J is at risk of mental health problems himself.
The fact that J will be separated from the grandparents for the next three months was a matter always contemplated by virtue of the grandparents’ long standing plans to holiday out of Tasmania over winter. The paternal grandfather is travelling to get away from the cold weather which aggravates a medical condition.
The fact that J will not see the father, Miss B or C whilst the grandparents are unavailable is sad for J but unavoidable. It is a matter to which I have regard pursuant to s 60CC(3)(e).
Conclusion
I am satisfied that the only outcome consistent with J’s best interests is to require that he return to the mother’s care without delay. It is appropriate that the grandfather facilitate the return so as to reinforce in J’s mind that the appropriate place for him is in the mother’s care. I accept the assurance of the grandfather that he will deliver J as required. In the absence of that assurance, I would have no hesitation in making a recovery order.
The grandfather applied for J’s return to be delayed until tomorrow evening to coincide with the grandparents leaving Tasmania. I am satisfied that to accede to the grandfather’s request would place intolerable pressure on J and possibly be interpreted by him as his grandparents being the most appropriate carers for him as long as they are in Tasmania. Neither father nor Miss B should play any part in J’s journey back to the mother so I will enjoin the grandparents from permitting that to happen in the terms as applies to the operative spend time orders.
The mother and the girls are in holiday accommodation at the moment. That is at C Club some distance from Launceston and from W. The grandfather applied for the handover to be in Launceston as the mother happened to be at work only a few blocks from the Court. He argued that it is quicker and more convenient for him and the grandmother to deliver J in Launceston. Somewhat at odds with that was the grandfather’s submission that he needed to take J back to W to collect his belongings. These were not belongings which J took when he ran away from home but items accumulated over the last six days including some clothes from the father’s home.
J’s best interest is the paramount consideration but it is not the only consideration. I regard the grandparent’s convenience and the expense as relevant factors in determining how a changeover ought to be effected. However, those factors are not, in my view, as significant as the importance of the changeover working as well and being as least traumatic as possible. J’s happiness at seeing his sisters in the holiday accommodation is likely to make for an easier transition for J than him being dropped off to the mother in metropolitan Launceston. The mother sought that J be delivered at 7.00 pm by which time she will be at C Club. The grandparents would not have been able to leave the Registry much before 4.45 pm. I will require the changeover be effected by 8.00 pm. so the grandparents do not have to rush.
I will not make any order requiring that the designated family consultant, Ms N, explain the outcome to J. Obviously, he will know what the outcome is well before these reasons are published but I think that there is some merit in J being told the basis for the decision and in the presence of the independent children’s lawyer if that is considered appropriate by both the family consultant and Mr Walker. I do not make an order or direction because I am not certain that Ms N is available or whether she would identify factors which point to an explanation not being such a good idea. If Ms N can meet with J, I am confident that the mother would facilitate it by bringing J in to see Ms N so there is no need to compel the mother to do so by order.
Ancilliary matters
In the running of the matter, counsel for the mother foreshadowed an application directed to preventing the father and his partner, Miss B, from placing telephone calls to J’s mobile service to fuel his discontent at being in the mother’s care. Of course, the remedy is to stop calls altogether from that household. Ultimately, the mother did not persist with that application.
These reasons, together with those of 12 March 2009 and any other relevant court documents, should be provided by the independent children’s lawyer to Dr A in anticipation of his assessment of J. I will also direct that a copy of these reasons be directed to Ms N.
Finally, it occurs to me that the principal of J’s school should be advised of what J has experienced during the school term holidays at least so that there is some understanding that it has been a turbulent rather than restful time for him. My usual course would be to require the independent children’s lawyer to provide a copy of these reasons to the school for the attention of the principal and such other of the teaching or pastoral staff as the principal considers is appropriate. However, I will not do that at this stage. I did not hear from the parties as to whether they object to that course and, if anyone does, the basis of the objection. Even more importantly, my impression is that J’s school is somewhat of a haven for him. The last thing that a boy of J’s age craves is to stand out from his peers or appear different. I do not wish to disturb any tranquillity J may have at school by him knowing (and I am confident that he would be told) that school staff and his teachers know particulars of the parental conflict which besets him and his sisters or of the father’s unusual behaviour. So, for the time being, there is no requirement that the independent children’s lawyer distribute the reasons to J’s school.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 17 June 2009
2
2
3