Short & Trevilian (No. 2)

[2008] FamCA 215

FAMILY COURT OF AUSTRALIA

SHORT & TREVILIAN (NO. 2) [2008] FamCA 215

FAMILY LAW – CHILDREN – Magellan – Interim proceedings – allegations of inappropriate behaviour by father towards eldest child – previous interim orders that child reside in boarding school following interim hearing of oral evidence – receipt of report from Families SA – consideration of psychologist’s report – denial by child of inappropriate behaviour – parental alienation from mother – consideration of reasons given in previous interim hearing – need to protect child from alleged harm – in child’s best interest to remain a boarder pending determination of proceedings – father restrained from spending overnight time with child – time with father to be supervised – school holiday arrangements – not appropriate for two younger children to spend overnight or unsupervised time with father – risk to children’s psychological wellbeing.

FAMILY LAW – CHILDREN – with whom a child communicates – restraint of telephone communicate likely to negatively affect child’s wellbeing – not appropriate to deny communication – no order made.

FAMILY LAW – EVIDENCE – Of a child – whether child to give oral evidence at hearing adjourned for consideration by trial judge.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Short

RESPONDENT: Mr Trevilian

OTHER PARTY: Minister for Families and Communities

INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

FILE NUMBER: ADF 1855 of 2003

DATE DELIVERED: 25 March 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 25 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A.C. Ferdinandy

SOLICITOR FOR THE APPLICANT: Angela Ferdinandy

COUNSEL FOR THE RESPONDENT: Ms Lewis

SOLICITOR FOR THE RESPONDENT: Tindall Gask Bentley

COUNSEL FOR THE OTHER PARTY: Mr M. Figwer

SOLICITOR FOR THE OTHER PARTY:

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr J.G. McGinn

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Judith Cocks

Orders

1. IT IS DIRECTED that the father file and serve a response to the final orders application within fourteen [14] days from today.

1. The mother and father immediately confer with the Independent Children’s Lawyer about the placement of the child S during the school holidays and if no agreement is reached by the 8 April 2008 S is to reside with Mrs W during the school holidays provided that the Independent Children’s Lawyer communicates with Mrs W or any agreed person that they are required not to discuss these proceedings with S or with any of the children attending S College.

1. AND IT IS FURTHER DIRECTED that the parties confer with the Independent Children’s Lawyer about any arrangements to be made for the children V and E to spend supervised time with the father if necessary at a Children’s Contact Centre.  If the parties are unable to agree on arrangements for V and E then the father has liberty to apply in relation to the time he is to spend with the children V and E.

1. The father is restrained and an injunction is granted restraining him from:

(a)       spending any time with or in the company of the child S save and except under the supervision of the staff of S College or during the school holidays under the supervision of a suitable person agreed to by the mother, father and the Independent Children’s Lawyer;

(b)       spending overnight occasions where S is sleeping or residing.

1. The Court makes no order which restricts the telephone communication between the father and S on the basis that S’s emotional wellbeing requires that she have the ability to communicate with one of her parents in this case her father.

1. AND FURTHER DIRECTED that the final orders application be referred to a 1^st day hearing before the trial Judge with such priority as is available for a Magellan matter and during the period of the adjournment of the final orders application I continue paragraphs 6, 7, 8, 9, 10, 11 and 12 of the orders of The Honourable Justice Burr of the 12 February 2008.

1. The Court makes no order in relation to the father spending time with the children V and E.

1. The Independent Children’s Lawyer has liberty to apply if that is required.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1855  of 2003

MS SHORT

Applicant

And

MR TREVILIAN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which comes on before the Court for further decision on an interim basis.  The matter has been before the Court concerning the current applications since late 2007.  The matter had previously been before the Court when final orders were made.

2. The interim proceedings have been categorised as Magellan matters and, as a result, have been heard by Burr J on previous occasions; in particular, the last occasion the matter was before Burr J was 12 February 2008 when his Honour heard the oral evidence on an interim application of the father and one of the witnesses in the proceedings, Ms Q.  He took that unusual step realising it was an unusual step but did so nonetheless in the unusual circumstances of this matter.

3. He made orders on 12 February and delivered detailed reasons for those orders, in which he recognised the difficulties in making any findings in relation to the specific allegations concerning improper behaviour between the father and the child S and commented to a certain extent upon the assessment of the evidence of both Ms Q and the father.  He did indeed refer to inconsistencies in the evidence of Ms Q and concerns he had about some of her evidence.  He also referred to difficulties in relation to some of the father's evidence, referring to significant prevarication about his evidence on one topic and a sense of unreality about some of his explanations on a number of topics.  That is paragraph 12 of his Honour's reasons.  He concludes that paragraph by saying:

   “However, as I said, it is not appropriate for me to make any particular or emphatic finding on those issues of credit.”

4. He then referred to the specific sections of the legislation which directed him and thereafter set out under various subparagraphs the findings or comments he made about each of the criteria that needs to be considered under section 60CC.

5. Obviously, I am also aware of the fact that, even when making a decision on an interim basis, the primary consideration has to be what is in the best interests of S as guided by the legislation, which emphasises as primary considerations the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence.

6. The proceedings before me are proceedings which relate to the welfare of the three children of the parties and, as emphasised by counsel for the Independent Children's Lawyer, not just the welfare of the eldest child S. 

7. S was born in July 1992 and will shortly be 16; V was born in June 1995 and is therefore aged 12, nearly 13; E was born in June 1998 and is therefore nine, approaching 10.

8. There have been proceedings in this court for a considerable period of time concerning issues between the parties, including issues concerning the welfare of the three children.  The matter comes on before me today having been adjourned after his Honour Burr J's reasons for judgment when he heard on an interim basis the oral evidence of the father and Ms Q.

9. It was Ms Q’s affidavit and her evidence concerning what she alleged to be her observations of the father towards S that brought about the current set of proceedings, it being alleged that the father has behaved in a sexually inappropriate way towards S.  The adjournment was on the basis that it was hoped that the further assessment being carried out by Families SA would give more information to the court.  In particular, paragraph 43 of Burr J's reasons said that it was appropriate for him to consider what the next step was, and he referred to:

   “A critical piece of information has yet to be provided to the court.  That is, the outcome of the assessment and psychological report presently being undertaken by Families SA.”

10. He then said in the next paragraph that he had concerns about the father's ability to "maintain appropriate boundaries in a number of senses until I receive further enlightenment and hopefully comfort from that assessment".  He then went on to consider what orders should be made on an interim basis, bearing in mind the evidence that he had heard and the material that was then before the Court.

11. He concluded that it was inappropriate during the period of the adjournment for S to return to reside with her father in his household and, after considering the options, directed that S reside at S College as a boarder.

12. The matter comes on before me today on the understanding that the parties would then have available to them that further report of Families SA.  That was received by me a few minutes before coming into Court this afternoon and, as I understand it, only received by the father's solicitors and counsel a short time prior to the commencement of the hearing before me today.

13. I stood the matter down whilst counsel Ms Lewis considered the report and took instructions.  The report is dated 19 March 2008 and is a report of some 30 pages, prepared by Ms J, who is a psychologist, I assume in the employ of the Department for Families and Communities.  That report was prepared after interviewing the father, the mother and the three children.  It was also prepared after considering various telephone attendances upon relevant people and considering a large amount of documents that had been provided to Families SA.

14. Once again, it needs to be emphasised that this is a decision being made on an interim basis and necessarily cannot be a conclusive decision made having had all of the evidence tested.  In particular, attention is drawn by counsel for the father to what might be described as some omissions or inconsistencies in the report.  Those inconsistencies and/or omissions will need to be tested in the appropriate manner when the author of the report gives oral evidence before the Court and the factual basis for the material considered and the appropriateness of the conclusions drawn can be clearly tested.

15. What the Court now has to do is determine what is in the best interests of all three children pending a hearing of the matter. As Burr J emphasised, that requires a consideration of all of the factors referred to in the sections of the Family Law Act when determining what is in the best interests of the children.

16. It appears to me that the significant issues in this matter are the wishes of the children, the views expressed by the children and the need to ensure that the children's physical and psychological welfare is protected as far as possible. 

17. It is trite to repeat what counsel have all maintained before me, that this is a difficult matter.

18. S is 15, nearly 16.  She is described as a child with independence of will and strong spirit in the judgment of Burr J, and that is clearly borne out by the assessment carried out by Ms J, the psychologist, in her report.  There are various matters to which I have been referred by counsel in Ms J’s report.  I will not be able to highlight all of those, and it is of course essential that the report be read as a whole and the conclusion considered in that context rather than merely highlighting parts of the report.  However, it appears from submissions from counsel that the father interpreted the orders of Burr J made on 12 February 2008 to permit him to have regular unsupervised telephone communication with S and that he has been having that regular telephone contact with S up until the present time.

19. I am not able to say whether it was intended to restrain the father from having telephone communication with S rather than spending time with S, because of the difficulty brought about by the changes in terminology in the various amendments to the Family Law Act over time. The expression "contact" which used to be referred to as "access" has now been replaced with a phrase called "spending time with". Burr J's orders from earlier this year and indeed the order of 12 February 2008 refer to "having any contact with [S] save and except under the supervision of [S] College staff".

20. The report therefore needs to be seen in a context of the father having regularly had telephone conversations with S, as well as spending time playing tennis with her, which has been referred to as "under the supervision of the [S College] staff".

21. The psychologist’s report is some 30 pages long and involves assessment by the psychologist of the parties and the children, having carried out behavioural functioning tests in relation to each of the parties and the children.  The most significant parts of the report necessarily focus upon the children and their interviews.

22. The report comes to certain conclusions and, again without ignoring the findings made generally in the report, the psychologist concludes that S’s responses to one of the tests confirmed her position of alignment with her father and of alienation from her mother.  It also suggested an unrealistic interpretation of the complexity of human relationships, of the manner in which S has been encouraged to view her mother negatively and as the cause of all her current complaints and of her father in an idealised manner.  That is in the middle of page 22.  The author also says on page 28:

    “[S] presented as an unusual teenager.  She has been given an extraordinary level of certainty regarding her own right to be involved in adult matters by her father.  The level of vitriol that she directs against her mother is considered to have developed with the encouragement of her father.  It does not appear that he has mitigated her placement of blame upon [the mother] for every wrongdoing that she perceives in her life; whereas he has accepted responsibility for all of the positive things that occur.  [The father’s] behaviour with [S], less so with [V] and [E] at this stage, appears to have provoked extreme parental alienation of [the mother] from [S].”(my underlining)

23. The recommendations in the report start at the middle of page 29.  However, immediately before that section the report states:

    “In sum, the relationship that [the father] has encouraged between himself and [S] is highly concerning in its restriction of relationships with others, including the development of individuation away from the parent, its connection based upon superiority and denigration of others, and the modelling of contempt towards authorities such as the court.”

24. I interpose here to say that those matters of course are conclusions which would need to be tested when the author of the report provides further explanation for those conclusions when giving oral evidence.

25. The report continues:

    “While [the father] wishes to see greater flexibility in his visitation rights with [V] and [E], it is considered that this will result in confusion for the younger two girls and the potential alienation of [V] in particular from [the mother].  In this sense, his manipulations of the girls can be considered emotionally abusive, though not in the manner usually observed within the child protection system.”

26. Under the recommendations, there are not specific direct recommendations.  Rather, the author refers to certain options.  First of all, it says:

    “If the court accepts the affidavits of [the mother], Ms [N], Ms [D] and Ms [Q], then it would appear that the relationship between [the father] and [S] is at least improper and requires limitations placed around it, as have occurred with [S] residing in the boarding house at [S] College.  It would further be considered inappropriate for [V] or [E] to spend time overnight or unsupervised with [the father].”

    It continues:

    “If the court does not accept the affidavits of those mentioned, the parenting of [the father] remains in many respects worrying at least and possibly objectionable, though depending upon the stance of the court, not necessarily requiring such restrictions of access with his children.”

27. I refer to the remainder of the recommendations.

28. Having heard the submissions of counsel for the mother, counsel for the father and the Independent Children's Lawyer, I find it appropriate to again refer to the findings made by Burr J, where he expressed concern about the difficulties which would be placed upon the father and, in particular, S by any interim decision.  He said it was appropriate to heavily weigh the issues of risk to S by remaining in her father's household, for the various reasons mentioned, more heavily than he would the risk to S of being deprived of her comfortable level of living and her comfortable schooling and achievement over a period of some weeks.  I am referring now to paragraph 46.

29. He continues in paragraphs thereafter to weigh those risks, and said that the concern he had was about both parents' ability to show their capacity to support and maintain a relationship between S and the other parent.  Even though the factors weighed heavily on both sides, he concluded that S should reside during the period of the adjournment at S College.

30. I am told from the bar table today that, as a boarder during term time, that accommodation is still available to S and that this is the outcome supported by the mother and the Independent Children's Lawyer pending a decision made concerning the final determination of the matter.

31. The factors which weigh heavily on my mind have to be that S has spoken to the writer of the report and clearly denied any of the allegations of inappropriate behaviour on the part of the father.  However, those denials have to be seen in terms of the report, which refers to the additional concern of the extreme parental alienation which it is alleged the father has maintained, therefore influencing S in her relationship with her mother and, by implication, influencing S in assessing her own situation.  In particular, the parts to which I refer which suggested that she had an “unrealistic interpretation of the complexity of human relationships” and the manner in which she had been encouraged to view her mother negatively.

32. In the balance, therefore, in this difficult case, I am satisfied that it is in S’s best interests to maintain a situation where she is not under the strong influence of the father (to the extent that she resides with him) but that she continues to be a boarder at S College pending the determination of these proceedings.  I do that on the basis that it is a consideration required because of the need to err on the side of caution and protect S from what is alleged to be the psychological harm that might occur if the child were to reside with the father.

33. Obviously the mother’s home is not an option at this stage because of the negative attitude of the child.  It can be assumed that S would refuse to reside with her mother.  I am told S has now been residing as a boarder at S College since shortly after the last orders made by Burr J.

34. The other issue which needs to be determined is what should happen to S during the approaching April school holidays.  The father is unable to offer any alternative other than his own care.  The mother has nominated various persons, being friends and relatives, in her affidavit of 12 February 2008, none of whom are apparently acceptable to the father as an alternative.  The mother, through her counsel today, raises another friend who is a parent of a child with whom S is familiar at school.  The father has objected to that person on the basis of the risk that that may be to S’s relationship with her peers at school and the impact that that would have upon her emotional and psychological wellbeing.  That is an extremely important factor which needs to be considered.

1. In view of the lack of information before the Court, I propose to order that the mother and father confer immediately with the Independent Children's Lawyer about the placement of S during the school holidays and, if no agreement is reached by 8 April, S is to reside with Mrs W during school holidays, provided that the Independent Children's Lawyer communicates with Mrs W to inform Mrs W that she is required not to discuss these proceedings with S or with any of the children attending S College and the Independent Children's Lawyer is to communicate to any person with whom S is placed during school holidays with an indication that they not to discuss these proceedings with S or any of the children who attend S College.

2. I have also considered the issues concerning the other two children.  The report of Ms J expresses concern about the risk to V and E if they were to spend unsupervised time with the father and, in particular, refers to the risk to V of alienation if such time was spent overnight or unsupervised.  The risks to the children's psychological wellbeing, and in particular to V, of alienation from their mother is a factor which needs to be taken into account.  (E is at such an age where it does not yet appear to have been a significant factor in her interview with Ms J.)

3. I am satisfied, therefore, that until the matter is properly determined by the Court, it is not appropriate to make an order that the children spend any overnight time with the father or any unsupervised time.

4. In relation to the continuation of the orders in relation to the father communicating with or having contact with S, I consider it is appropriate that face‑to‑face time spent with S by the father be under the supervision of S College staff, and I propose to continue an order in similar terms to that of Burr J. 

5. In relation to having telephone communication, I have carefully considered the various options.  I am concerned that an injunction which restrains S from having telephone communication with her father is likely to have a serious negative effect upon S’s wellbeing.  It is significant now that the assessment has been completed by Ms J obviously in circumstances where S continued to have telephone communication with the father.  It is likely to be some considerable time before these proceedings are finally determined.  It is not appropriate for S to be denied communication with the only parent with whom she currently has a relationship.

6. It will be sufficient strain for S and her ongoing developmental and psychological needs for her to continue to reside in S College pending the trial and for her to continue to reside with a third party during the school holidays.  It would be an extra severe burden for S to be denied telephone communication with her father during that time.  I have to balance that off against the risks to S that might be asserted in relation to the extreme parental alienation, but an order of the Court restricting S’s communication by telephone with her father for any period of time is likely to exacerbate any alienation she feels with her mother.

7. I therefore do not make an order which restricts the telephone communication between the father and S, on the basis that S’s emotional wellbeing requires that she have an ability to communicate with one of her parents; in this case her father.

8. The question of whether S should give oral evidence at any hearing of this matter should be adjourned for consideration by the trial judge.  Obviously that matter needs to be raised with the trial judge as soon as the identity of the trial judge is known.  It is appropriately a decision which should only be made by the trial judge when the matter is ready to proceed for trial and all of the issues are clearly identified.

9. I make no order in relation to the father spending time with V or E.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  25 March 2008