SS & AH
[2010] FamCAFC 13
•5 February 2010
FAMILY COURT OF AUSTRALIA
| SS & AH | [2010] FamCAFC 13 |
| FAMILY LAW - APPEAL – CHILDREN – Wishes of the children – Weight to be attributed to children’s wishes – Children aged 15 and 11 – Both children expressed strong wish not to see the mother – trial Judge entitled to place significant weight on children’s wishes FAMILY LAW - JUDGMENTS – Sufficiency of reasons – Reasons delivered ex tempore by trial Judge – Evidence fresh in trial Judge’s mind – Where trial Judge made orders preventing mother from initiating contact with child – Decision open to trial Judge based on evidence before his Honour FAMILY LAW - ORDERS – Where the trial Judge made orders that resulted in the suspension of an established parenting regime – Where the trial Judge made orders preventing the mother from initiating contact with the children FAMILY LAW - PRACTICE AND PROCEDURE – Where further hearing of applications for final parenting orders were deferred in order to await the outcome of an appeal against interim parenting orders FAMILY LAW - EVIDENCE – Whether trial Judge made findings of fact on contentious issues based on untested evidence – Where trial Judge had the benefit of being able to assess the self-represented litigants at the interim hearing – Where controversial findings did not constitute the ratio of the trial Judge’s decision – Insufficient basis to require appellate interference FAMILY LAW - EVIDENCE – Family Consultant – Weight to be attributed to Family Consultant’s recommendation – Where Family Consultant had not had the opportunity to undertake a thorough assessment – Where the Family Consultant’s evidence was the only reliable evidence of the views of the child – Where the father and mother were given the opportunity to cross-examine the Family Consultant but in circumstances where they were both unrepresented and had no prior notice of what the evidence would be FAMILY LAW - EVIDENCE – Further evidence – admitted by consent – further evidence does not indicate that the trial Judge’s decision was erroneous |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 CDJ v VAJ (1998) 197 CLR 172 Goode and Goode (2006) FLC 93-286 Rice and Asplund (1979) FLC 90-725 Rollings v Rollings (2009) 230 FLR 396 | ||
| APPELLANT: | SS | |
| RESPONDENT: | AH |
| INDEPENDENT CHILDREN’S LAWYER: | Jan Kingston |
| FILE NUMBER: | BRF | 1070 | of | 1999 |
| APPEAL NUMBER: | NA | 94 | of | 2008 |
| NA | 95 | of | 2008 | |
| NA | 51 | of | 2009 |
| DATE DELIVERED: | 5 February 2010 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Boland, Thackray & O'Ryan JJ |
| HEARING DATE: | 4 August 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 September 2008 |
| 29 September 2008 | |
| 10 June 2009 |
| LOWER COURT MNC: | [2008] FamCA 821 |
| [2008] FamCA 823 | |
| [2009] FamCA 519 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Couper QC |
| COUNSEL FOR THE RESPONDENT: | Self represented litigant |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Drysdale |
| SOLICITOR FOR THE APPLICANT: | Self represented litigant |
| SOLICITOR FOR THE RESPONDENT: | Self represented litigant |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
That appeals number NA 94 of 2008, NA 95 of 2008 and NA 51 of 2009 be dismissed.
That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Northern Region Appeal Registry of the Family Court and serving them on the other party within 21 days of the date hereof.
That the other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Northern Region Appeal Registry of the Family Court of Australia and serving them on the other party.
That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Northern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further 7 days.
That each party endorse on the cover sheet the date on which a copy of that submission was served on the other party.
IT IS NOTED that publication of this judgment under the pseudonym SS & AH is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 94 of 2008
NA 95 of 2008
NA 51 of 2009
File Number: BRF 1070 of 1999
| SS |
Appellant
And
| AH |
Respondent
REASONS FOR JUDGMENT
Boland and Thackray JJ
SS and AH have been engaged in prolonged litigation concerning their children, J and K. J is now 16 years of age and K is 12.
The mother has now appealed interim orders made by Barry J in September 2008, which significantly varied orders made after a long trial in 2005. The earlier orders provided for the children to live with the father, but allowed the mother time with them four nights each fortnight, as well as half of all school holidays. They also provided for joint parental responsibility.
The orders under appeal provided for:
·the discharge of the order for joint parental responsibility;
·the father to have sole parental responsibility;
·the suspension of the orders for the children to spend time with the mother (save for such time as the father may permit);
·the children to be able to communicate with the mother when they wish, but she not to initiate communication with them (although she is permitted to send one email in response to each email they send to her and she is also permitted to send cards on special occasions).
Barry J otherwise adjourned the matter to December 2008 to consider making an order for the mother to have supervised contact with K. He also listed the trial for April 2009. In retrospect, it would have been better had the mother not appealed. The appeal was not heard until August 2009 and, in the meantime, the trial has been postponed pending the outcome.
The father and the Independent Children’s Lawyer oppose the appeal.
Terminology
In these reasons, for convenience, we will:
· use the word “contact” interchangeably with “time” and “time spent”;
· refer to Barry J as “the trial Judge”, although he conducted only an interlocutory hearing;
· replace the names of the parties with their position in the family when we are citing from the trial Judge’s reasons and other material.
Background
The mother and father were married in 1992 and separated in 1999. The mother is a dentist and the father is a manager.
There were two children of the marriage. J was born in 1993 and K was born in 1997. J was nearly 15 and K was 11 at the time of the hearing before the trial Judge.
In 2000, after a trial, May J ordered that the children live with the mother and have regular contact with the father. An order was made for the parents to have joint parental responsibility.
The mother filed an application in 2002 to reduce the father’s contact. The mother made various allegations about the father, including that he had sexually abused K. As a consequence, there were two periods when the father was only able to see the children when supervised. The last of these was from October 2004 to June 2005.
After a very lengthy trial before Buckley J in 2005, orders were made as mentioned at the commencement of these reasons. The children then moved to live with the father and began having regular visits with their mother.
J and the mother had a disagreement in September 2006. J stopped seeing his mother and had not seen her for about two years by the time the orders under appeal were made.
In October 2007 the mother filed a fresh application seeking that the children live with her and an order for sole parental responsibility. She filed an interim application at the same time in which she proposed that the father’s time with the children be supervised. She also filed a contravention application.
The father filed a response in December 2007 seeking the summary dismissal of the mother’s application on the basis of insufficient changed circumstances.
The matter was listed before Barry J on 23 July 2008, at which time he dealt with some of the mother’s contravention complaints. He also heard argument on whether the mother should be permitted to pursue her further application for residence. The decision on that matter was reserved.
K and the mother then had an argument shortly after the hearing on 23 July 2008 and contact between the mother and K also ceased.
On 22 August 2008 the father filed an interim application seeking suspension of the orders for parental responsibility and contact. The father claimed that K had said she did not want to visit the mother anymore. The mother then filed further contravention applications on 25 and 26 August 2008.
On 11 September 2008 the mother filed a response to the father’s interim application in which she sought orders for residence of both children and sole parental responsibility. She proposed the father have supervised contact for four hours a week.
The hearing before Barry J commenced on 29 September 2008. His Honour first indicated that he had determined that the proceedings should be “reopened” – or, in other words, that the requirements laid down in Rice and Asplund (1979) FLC 90-725 had been met. After hearing some preliminary submissions, his Honour directed that the children be brought to the Court forthwith to be interviewed by a Family Consultant. The balance of the hearing that day largely comprised a dialogue between his Honour and the parties concerning the merits of the competing applications and the way in which the proceedings would be managed to trial. The only oral evidence was that given by the Family Consultant after he had interviewed the children. The Consultant was cross-examined but there was no cross-examination on the affidavit evidence of the mother or the father, or any of the witnesses.
The trial Judge then delivered reasons concerning the appointment of an Independent Children’s Lawyer and the manner in which the balance of the proceedings would be conducted. In the course of delivering his reasons his Honour ruled that although the substantive proceedings could be pursued, they would relate only to K. He otherwise adjourned the matter until the next day for judgment on the interim issues. The parties were permitted to make supplementary submissions the following morning. The matter was then stood down and his Honour delivered his reasons that afternoon.
The trial Judge’s reasons
Barry J commenced his reasons by saying he had to consider what changes, if any, should be made to the June 2005 orders. He noted that he had heard argument in July 2008 about whether the mother should be able to pursue her fresh application for residence and he had also dealt with her contravention applications. He said that although “events had overtaken the arguments”, he had already decided that the issues needed to be reconsidered.
His Honour then referred to the father’s interim application of August 2008. He quoted from the father’s affidavit, in which he alleged that the mother had been placing K under “mounting psychological pressure” and that K had now informed the father that she did not want to visit the mother.
He went on to record that J had not seen the mother for more than two years and that there had apparently been an altercation between them at the time contact ceased. He also recorded that the mother disputed the father’s claim that K was insistent she now did not want to see her.
His Honour then recorded that the mother disputed the qualifications of the Family Consultant to give the evidence he had concerning his interview with the children. He rejected this submission in light of the Family Consultant’s extensive experience.
He recorded that the Family Consultant had described K as “talkative, expressive and intelligent” during his 50 minute interview with her. The Consultant reported that K had felt tension as a result of arguments with her mother. In particular she recounted that about five weeks previously she and the mother had had a “large argument” which made K “quite upset”.
His Honour also noted that K had told the Family Consultant she wanted to avoid conflict and expressed a desire not to see her mother at present. K had said that when she was with her mother “she had to keep the peace by, in effect, pretending to agree with her mother”. Whilst K acknowledged she had arguments with J, she considered they were “normal type of arguments” whereas those with her mother “were unusual and placed enormous stress on her”. The Family Consultant said K was concerned that her mother would be angry with her if they were to speak on the telephone, or even if there was supervised time because of the views she had expressed to him.
His Honour then recorded that K had previously experienced supervised contact with her father, presumably when the mother had been alleging sexual abuse. He noted that “such allegations have subsequently been discounted but the mother still persists in making them”. He also noted that K had told the Family Consultant that “people stared at her” when she was having supervised contact. His Honour said he inferred that K found the process of supervision to be “unpleasant and embarrassing”. He then noted that K had expressed a wish to communicate with her mother by email and said she wanted to receive cards from her mother on birthdays and special occasions.
His Honour recorded that the Family Consultant considered K had expressed herself in her own language and that her emotions were “congruent with her words”. The Consultant had not accepted suggestions put by the mother that K had been alienated from her by the father. The Consultant was of the opinion that K gave no indication of having been alienated or “coached”.
His Honour then recorded the Family Consultant’s evidence concerning his 15 minute interview with J. The Consultant had found J to have “a very straightforward nature”. J had volunteered to the Family Consultant that he contacts his mother by telephone every couple of months for a “chat”. J said he was not sure of his relationship with his mother and that they “only talk superficially”. J’s preference was for the position “to be left open” and he did not want any orders in place.
His Honour then referred to an email said to have been sent by J to the mother on 11 March 2008. He recorded that the mother disputed that J was the author but said that “for present purposes, I am satisfied [J] did write that email document”. His Honour said that the second paragraph of the email was “both sad and touching”. The paragraph in the email read as follows:
Unfortunately, the past has had a lot of effect on me. For many years I lived with you and you had an obsession of saying things that were extremely rude and disrespectful to me about my father whom I have a lot of respect for and love dearly. Because I didn't usually see my father for long periods of time, I didn't really discuss the things that you've said about him and I automatically believed the things that you said which I now know not to be true. For example, you used to say to me, your father used to tell me how he put puppies in boxing bags and used to hit them till they died. That he used to put pills in meat and give them to dogs so that they would die after they had eaten the meat. I had to put up with a whole lot more rubbish that you said about him and you must understand it stayed in my head for an extremely long time and when I would visit my father, I would be disrespectful to him because I believed the things that you said and had it all going through my head which caused me to think I didn't want anything to do with him. Like I said before, I believed all the things you said about him which made me say that he was a bad person to all those people that were involved in helping us out in the Court which I regret doing.
His Honour then went on:
29.In relation to the child [K], I note somewhere in the material, the mother says that this child has been in the top two percent of the population of her age group intellectually. The mother says the father has actively and maliciously alienated the child from her. I reject the suggestion the father has alienated [K] from her. The evidence of [the Family Consultant] is confirmatory of that view. The mother annexed recent photos of the child and herself to her affidavit. Such photos speak for themselves but they are of a warm friendly nature with the mother interacting on a close basis with the child.
30.They are totally inconsistent with the mother's claims that the child has been alienated from her and that the father has somehow been responsible for this. The view that I have formed is that the mother cannot have it both ways. She alleges that the father has manipulated the child to express the views that she did to [the Family Consultant] yet, at the same time, contends she receives loving emails and enjoys a warm relationship with her daughter as reflected in the photos, such that she should be placed in her full time care on an interim basis.
31.I accept that the matter is complex. The child’s relationship with her mother would appear to be complex. I accept that [K] loves her mother but she is also afraid of her mother’s reaction as a result of the views she has expressed to [the Family Consultant]. She is concerned that her mother will be angry with her for behaving in this fashion.
His Honour referred to a series of emails between K and the mother which the mother had produced. His Honour said he was unaware if the emails were all of the emails, but he said they showed “that the child is able to correspond with the mother in a reasonable fashion via email”.
His Honour then recorded that “the mother persists in claims the father has sexually abused [K] yet the father has managed to engage in what she refers to as toxic alienation of the child”. He also noted that he understood J had stopped seeing the mother in about June 2006 because the mother did not wish him to visit her after the “serious altercation”. He noted that although the mother had not seen J for over two years, she had not filed any contravention proceedings.
His Honour then noted that the factors to be taken into account were set out in s 60CC of the Family Law Act 1975 (Cth). He recited paragraph 82 from Goode and Goode (2006) FLC 93-286, which he said provided a succinct summary of the process to be followed in interim hearings. Portion of paragraph 82 is reproduced below, together with the preceding paragraph (the emphasis is ours):
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in section 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
…
The trial Judge noted that each party was seeking significant changes to the existing orders. He said he had informed the mother:
that it would be most unusual to accede to her application for fulltime care of the two children on an interim determination such as this in view of the fact that the orders were made on 10 June 2005 and since that time the children have lived with their father.
His Honour then recorded that, in the alternative, the mother sought reinstatement of her time with J and had submitted that there was no basis for that to be supervised. However, in light of the views J had expressed, the mother was prepared to accept supervision “if that’s what it takes”.
The trial Judge next recorded that the Family Consultant had given details of K’s argument with the mother. K claimed her mother had referred to her as a “lying cow”. His Honour noted that K had informed the Family Consultant that the mother always said “bad things” about the father and that the arguments between K and the mother had been increasing in intensity over a period of years.
The trial Judge next noted that the Family Consultant had said “he would be cautious about pressuring [K] to have a relationship with her mother”. His Honour also recorded that the Family Consultant had acknowledged it was “difficult to make full recommendations without a comprehensive assessment and that could not be done in the timeframe which was available”. His Honour also noted that the Family Consultant had not ruled out supervised visits “at some point”.
His Honour then observed “there are very few agreed or uncontested facts in this matter”. He said he believed it was common ground the children should remain at their current school and he proposed to so order.
His Honour then commented on the future conduct of the matter, which he anticipated would require four days at trial, which could not be accommodated before March 2009. He said that in those circumstances he intended to adjourn the matter to late November 2008, by which time he hoped that an Independent Children’s Lawyer would have been appointed, and that at that time he would “review the question of supervision”.
His Honour then said that although he did not want to be critical about contact centres, K had expressed a view about being uncomfortable in that environment. His Honour commented:
I believe the mother would be uncomfortable in that environment except that she would do anything necessary to see her daughter but what I am suggesting is that coming towards Christmas if there could be an outbreak of peace and the mother put forward some names of persons that the father knows, a person who could be considered reliable, trustworthy, a person of integrity.
He expressed the hope that the parties might be able to agree somebody who would be able to supervise the mother’s time with K as this would make his task “a lot easier”. In the event such an agreement was reached, “[K] could be seen and comforted to say that she can spend time with her mother secure in the knowledge that there would be no risk of an incident or argument or disagreement”. His Honour nevertheless noted that the father’s approval of a supervisor was not “vital” as the Court retained a “residual discretion to approve somebody in any event”.
His Honour then recorded that before indicating the orders he proposed to make, it was necessary to consider s 60CC. Before doing so, his Honour considered the issue of parental responsibility. He noted that there was a presumption of joint responsibility and that an order to that effect had been in place since 2005. However, he went on to describe the order for joint parental responsibility as having been an “unmitigated disaster” and said this was reflected in the fact that each party was now seeking sole responsibility.
His Honour then concluded that:
in a situation where both the children are in the full‑time care of the father and the mother has limited time with [K] up till now and no time with [J], it is appropriate, in my view to order on an interim basis that the father have sole parental responsibility.
In dealing with the “primary consideration” contained in s 60CC(2)(a), namely the benefit to the child of having a “meaningful relationship” with both parents, his Honour said in normal circumstances he did not need any convincing that it was appropriate to place great emphasis on orders allowing parents to have a meaningful relationship with their children. He noted, however, that the orders sought by the mother involved the father having only four hours supervised time with the children each fortnight. He said he presumed the reason was because of the mother’s concern that the father had been alienating the children. His Honour said in this regard
Apart from the mother’s bald assertion that it be the case, there is really no evidence that I can find to substantiate that. It is not to be found in any statements by the children. It is not to be found in [the Family Consultant’s] assessment. I have looked high and low for indications and cannot see same.
His Honour noted that although the father had been proposing supervised time for the mother, having heard what the children had said to the Family Consultant, the father was concerned that the mother had been denigrating him directly to the children. His Honour noted that “if that evidence proved to be correct” it would be a “direct breach” of the existing orders, which required the parents not to denigrate each other in the presence of the children.
In dealing with the second of the “primary considerations”, namely the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, his Honour said:
There is no suggestion of any physical harm. I refrain from making any finding at this point in time in relation to the child being subjected to abuse and neglect. Certainly, there is no suggestion of neglect but whether there has been psychological harm in the conduct of either party is best viewed on another day.
Turning to the first of the “additional considerations”, namely s 60CC(3)(a), which relates to any views expressed by the child, his Honour noted that both children had expressed “relatively strong views to have no physical time with their mother at the present time”. He said that on an interim basis he placed considerable weight on this fact having regard to the ages of the children and “the acknowledged intelligence of [K]”.
In dealing with s 60CC(3)(b), which relates to the child’s relationships with his or her parents, his Honour noted that the mother’s relationship with both children was “problematic”, although he accepted that she had been a full‑time carer of the children. He also accepted that “she has the interests of both children in mind in acting as she has” and said that he could make similar observations about the father. He also recorded his view that the mother has “a very forceful personality and one aspect of this forceful personality is her ability to be very assertive at times”. He said he expected that in certain circumstances this behaviour could be perceived as intimidating, particularly for a young child.
In dealing with s 60CC(3)(c), which concerns the willingness and ability of each parent to facilitate and encourage a close and continuing relationship of the child with the other parent, his Honour observed the father had not sought to undermine the mother’s position, but the statements from both children would indicate that the mother had denigrated the father to them – and that this had persisted over a significant period.
He also noted that the mother persisted with claims that the father had sexually abused K, although he understood such claims had been “thoroughly investigated and discounted as unsubstantiated”. He said he would not expect K to be excelling at school and receiving glowing school reports if she was the ongoing victim of sexual abuse, and he would not expect her to be telling the Family Consultant that she wanted to remain in her father’s care if she had been the victim of her father’s abuse. (Given the focus of the mother’s complaints was elsewhere, it is unnecessary for us to make any comment on these views.)
In dealing with s 60CC(3)(d), which concerns the likely effect of any change in the child’s circumstances, including the likely effect of any separation from either of the parents, his Honour said:
It is a heart wrenching decision, I can assure you for any Judge at any time to make a decision limiting a child’s contact with a parent. I only do it with the greatest of reluctance and only when the evidence compels me in that direction. The discretion a Judge exercises is a discretion that has to be based on evidence. I can only reject evidence if there are sound grounds for doing so. I see no basis for rejecting the evidence of the Family Consultant. There will be a degree of continuity in the children’s lives. They will be at the same school. They will spend all of their time in the father’s household. Previously, [K] did spend time in the mother’s household.
His Honour then went on to say he expected that K would be sad at not spending time with her mother; however, he considered there would also be relief that the pressure that had been brought to bear on her from time to time will disappear. His Honour then said that he proposed to put in place “an order empowering the children and it will be a substituted order to apply to both [K] and [J]”. He said “the empowering is for K and J to communicate with the mother at any time and in any manner as they should elect to do so”.
His Honour went on to say, “I would not anticipate the father placing obstacles in the children’s way if they expressed a wish to communicate with the mother”. In this regard he noted that J seemed free to be able to communicate with the mother and that there did not seem to be any history of the father trying to prevent J making such contact.
In dealing with s 60CC(3)(f), which concerns the capacity of each of the parents to provide for the child’s needs, his Honour noted that he had “to place on record that the mother does display certain persecutory tendencies”. In this regard he noted that the mother “has ongoing clashes with the school authorities” and appeared to “lack insight that she could in any way be even partly responsible for the break down in any relationship with school personnel”. His Honour noted that earlier in the year the mother had proposed instituting contravention proceedings against the principal because he was allowing teachers to consult with the father without her being involved.
His Honour then went on to note the mother’s view that the Court system was corrupt, as were a number of the expert witnesses.
He then cited paragraphs from the mother’s affidavit containing her complaints about the father’s handling of what she considered to be J’s affliction with ADHD, and which contained adverse remarks about J’s educational progress. His Honour said that, as he read her claim, the mother was of the view that J’s school was somehow faking its results concerning J’s progress. His Honour said he had read J’s school reports and whilst some subjects were below average they were not to the extent as “described endlessly by the mother”. He noted that J was the form captain and was in the school cricket and football teams and that “any objective assessment of the mother’s voluminous affidavit material would indicate she is consistently disparaging of [J’s] ability”.
His Honour went on to say that he was not suggesting the father had made the mother’s court documents available to J but he said he had:
the sense that one way or another [J] has picked up on this and it must be terribly destructive of his self esteem to know that his mother has this very strongly held view that he has all these frailties and weaknesses and, in effect, he is at, possibly, the bottom of the entire nation in terms of academic achievement.
His Honour then recorded that “having been exposed to his parents’ ongoing conflict for nine years of his almost 15 years to date, it would not be surprising if [J] was not performing at an optimal level in his academic studies”.
Having delivered what he described as his usual “homily”, urging the parties to settle their differences, his Honour made the orders which are the subject of this appeal.
In the course of making his orders, the trial Judge said that having heard the mother’s submissions concerning J it occurred to him that one or other of the parents was going to need to have parental responsibility for J’s education. He then said
The alternative is to invite chaos in the present climate and once I have to make an order about parental responsibility, I would have to make other orders about whether [J] is required to spend time with his mother. I can simply observe that children of either sex when they hit 15 years of age, I place great weight on their views and on the way they conduct themselves. They normally, at that age, act in accordance with their own wishes and not what some judge is going to tell them.
After some further interchange, his Honour said, in effect, that he was recalling the order he had made the previous day limiting the re-opening of the proceedings to K. In doing so he said, “Upon reflection, I need to be able to determine the issue of sole responsibility. Decisions need to be made about [J’s] education, health and other aspects of his life”.
The reasons of 29 September 2008
It is appropriate we also refer briefly to some relevant matters contained in Barry J’s reasons delivered on 29 September 2008 – i.e. the day before the date of the orders under appeal.
His Honour noted that when the matter came before him on 23 July 2008 he had dealt with some of the mother’s contravention applications. He noted that he had dismissed three and reserved judgment on a fourth. He also noted that the father had advanced his argument concerning whether the mother should be allowed to pursue her fresh application for residence.
In addressing this issue, his Honour noted that the fact that each party was now seeking an order for sole parental responsibility was “sufficient to reopen the children’s issues”. He noted that events had overtaken the issue in that the mother was no longer seeing K, and the father was now seeking to suspend all future contact unless he could be assured K would “not be subjected to undue pressure by her mother”. He recorded that the father was agreeable to supervised time, which was rejected by the mother, but in the event it was found to be necessary the mother would take up any time she was given.
The trial Judge went on to say that it was quite obvious there had been significant changes since the 2005 orders and that he proposed to allow matters to be reopened; however, he proposed the reopening would be limited to K, as he did not wish J “to be subjected to the further litigation”.
In dealing with the question of whether there should be an Independent Children’s Lawyer, his Honour noted (our emphasis added):
There is a considerable body of evidence in the nature of reports from various experts, family reports and such like. The issues are complex. There are numerous allegations and counter‑allegations. I am more than satisfied the Court would be assisted by the appointment of an Independent Children’s Lawyer. Indeed, I express the view that it would be almost impossible to adjudicate without such assistance.
After dealing with issues concerning the appointment of the Independent Children’s Lawyer and the future conduct of the proceedings his Honour said
40.The reasons why I do not propose the child [J] to be the subject of any further litigation is as follows. [J's] views would appear to be adequately expressed by his conduct. He clearly could have contacted his mother at any time in the past two years and has, in fact, opted to do so of his own volition over a given period of time. As I understand the evidence, he has his own mobile. I expect that situation continues. Other than contacting his mother periodically by phone, [J] has declined to communicate further. I do not wish to be pinned down on this particular finding but on balance, for present purposes, I accept that [J] wrote the letter of 11 March 2008 in which he expresses strongly the views that he did not wish to see his mother.
41.I have had regard to the evidence of [the Family Consultant]. He interviewed [J] for 15 minutes. I am satisfied had he felt the need to interview [J] for a longer period of time, he would have done so, but [J] was very straight forward in saying what he had to say. [J] is about to turn 15 in the next fortnight or so. He appears to be well-developed for his age. [The Family Consultant] said he is mature. I believe somewhere in the material that he was either class captain or form captain at some given stage. That certainly is an indication from whoever appoints him, the school or the classmates, that he has some capability and some leadership qualities.
42.In particular I have had regard to the argument of the father that having regard to the expressed views of [J] it would be academic - I do not think that was his word but, in effect, it would be unenforceable, that if [J] was ordered to go and spend time with his mother, he simply would not stay with his mother and I am inclined to agree with that view.
43.As I have said to the mother at the outset of these proceedings on the first return date, which I believe was 5 December last year, I cannot recall a case in 25 years on the Bench where I have allowed the future of a 15-year-old male or female to be the subject of litigation. He is in grade nine. In a few months time he will be in grade 10 at high school. Children of that age are rapidly approaching adulthood. It is not for the Court to interfere and pressure children and to involve them once again in the litigation process. For the younger child, she is 11. There are serious issues with consequential ramifications.
The judgment of Buckley J
Although the trial Judge did not make express reference to the reasons given by Buckley J in 2005, those reasons were included in the Appeal Books. Examination of the transcript confirms that the trial Judge had looked at them, at least briefly.
As they provide important context, we will recite the final conclusions recorded by Buckley J:
271The level of acrimony, hostility and conflict which has permeated the parties’ relationship since their separation has impacted on the children’s lives to such an extent that each of them has suffered the difficulties discussed at length during the course of the trial.
272Sadly, the consequences which the children are likely to suffer in the event of their residing with either the Mother or the Father are such that I have found reaching this decision to be extremely difficult and complex.
273I am satisfied that the Mother is not likely to ever promote and foster the children’s relationship with the Father.
274In fact, I am satisfied that her loathing of and hostility towards the Father is at such an extreme level that she is determined to eliminate the Father from the children’s lives if she is able to do so.
275I was hopeful that, in view of the Mother’s high level of intelligence and her genuine love for her children, that her attitude may have ameliorated after hearing all of the evidence. Sadly, that has not been the case. It is clear from the submissions which were drawn by her solicitor on her “strict instructions” that she maintains her position and that she will continue to pursue her objective if the orders which she seeks are not made.
276…
277As I have made clear in these Reasons, I have substantial reservations about the Father’s capacity to provide for all aspects of the children’s welfare. I have no doubt that if the Mother had the capacity to facilitate regular contact of the children with the Father, that their best interests would be served by their remaining in her care as she has been their primary care giver since birth and both of the children are strongly attached and bonded to her.
278However, as I have found, the Mother does not have the capacity nor the will to facilitate such contact. As I have also found, I am satisfied that not only will she not do so, but will proactively undermine the children having any relationship with their Father. If the Mother was to obtain a residence order in her favour, the likely consequences will be that the children will not have the opportunity to maintain a relationship with their Father. There is little doubt that the children’s long term welfare and emotional and psychological development will be substantially impaired by their being alienated from their Father.
279Furthermore, I am satisfied that should the children remain in the Mother’s care, that she will continue to involve them inappropriately in the dispute between the parties until she achieves her objective of significantly curtailing or terminating the children’s contact with their Father ...
280It is clear from the evidence that each of the children are struggling to cope with the pressures to which they have been subjected since that time. There is no dispute as to the evidence that each of them are currently experiencing considerable difficulties which has required medical intervention…
281Regrettably, from the children’s perspective, I have come to the conclusion that the Mother’s intense loathing of the Father is at such a level that she will continue to involve the children to their substantial developmental detriment, should they remain with her.
282On the other hand, I am very conscious of the fact that, in view of my findings about the Father, that there is a very real risk that he may be unable to cope with the behavioural problems which the children will inevitably experience as a result of a change in residence. I have no doubt that those problems will be exacerbated by the Mother’s reaction to such a change.
283On a more positive note, as I have already found, I am satisfied that the Father is likely to facilitate the children’s relationship with the Mother.
284I have come to the conclusion that it is in the children’s best interest to place them in the care of their Father…
The mother did not appeal Buckley J’s orders, although her evidence indicates that a campaign attacking them was conducted in the media. Disciplinary proceedings were also successfully taken against one of the expert witnesses who had referred to the “Parental Alienation Syndrome”. Interestingly, the mother’s case now is largely based on what she asserts has been the father’s “alienation” of the children, but she has been careful to distinguish his alleged conduct from the so called “Parental Alienation Syndrome”.
The Notices of Appeal
We originally had before us three appeals against orders made on 29 September 2008, 30 September 2008 and 9 June 2009. By the time of the conclusion of argument Appeal NA 95 of 2008 and Appeal NA 51 of 2009 had fallen away, leaving only Appeal NA 94 of 2008, which concerned the orders of 30 September 2008. (Transcript 4 August 2009 page 60)
The mother was self represented at the time the appeal was instituted. Her Notice of Appeal contained more than 70 grounds. These were supported by a lengthy Summary of Argument and an exhaustive list of authorities. Fortunately, the mother had obtained legal representation for the hearing of the appeal and her counsel expertly condensed her multitude of complaints into four key issues. We intend to deal with the appeal by reference to those issues.
It was asserted that the trial Judge had erred in that he:
(1)made findings of fact against the mother when the evidence did not support the findings or was contentious;
(2) placed too much weight on the expressed wishes of the children;
(3)relied upon the “brief recommendation” of the Family Consultant in circumstances where the Consultant had not given a considered expert opinion; and
(4)had not identified any proper basis for making the order preventing the mother from initiating contact with the children.
Counsel for the mother said his “over‑arching point” was that his Honour’s discretion miscarried when, at an interim hearing, he terminated the mother’s regular contact and instead imposed a regime whereby not only was the mother deprived of her entitlement to see the children, but was also not even able to initiate communication with them.
The father was unrepresented both at the hearing below and on the hearing of the appeal. For the most part, he adopted the submissions made by counsel for the Independent Children’s Lawyer.
Ground 1 – findings based on contentious evidence
Counsel for the mother acknowledged that the mother’s primary complaint was that the trial Judge had made findings of fact on contentious issues in circumstances where there had been no testing of the evidence other than that of the Family Consultant.
We should record at the outset that his Honour had before him a plethora of documentation. There were over 3,000 pages of material in the Appeal Books. Counsel for the mother submitted that there was conflict in the affidavit evidence at almost every point and, in those circumstances, the appropriate outcome would have been for Buckley J’s orders to have been left in place until all issues could be properly ventilated.
Counsel for the mother took us to a number of examples in the trial Judge’s reasons which, it was contended, amounted to findings of fact about matters clearly in issue. It was submitted that these controversial findings must have influenced his Honour’s decision.
The Independent Children’s Lawyer acknowledged that the trial Judge may have made findings on controversial evidence; however, he submitted they did not constitute the ratio of the decision. Instead, he argued that the outcome rested on the significant weight his Honour placed on the children’s wishes, about which there was independent evidence, and which had been the subject of cross-examination. He submitted that his Honour had made the right decision, at least insofar as it concerned the children spending time with the mother. He also emphasised that the reasons had been given ex tempore.
We turn now to consider some of the findings which it is said could only legitimately have been made after the evidence had been tested. In doing so, we keep in mind the statements in Goode and Goode that at an interim hearing it is important to identify the agreed/uncontested facts and that consideration of the s 60CC factors is likely to be limited, given that there may be little uncontested evidence on which findings can be made.
The thrust of the father’s case before the trial Judge had been that the views expressed by the children were based on the “enormous psychological pressure” the mother had brought to bear upon them and their response to that pressure. On the other hand, the thrust of the mother’s case was that the children’s negative attitude towards her was the result of the efforts of the father to alienate the children.
The resolution of that controversy involved an ultimate finding of fact, which in turn would necessarily have involved other findings. His Honour found against the mother on this central issue. He did so without equivocation, which can be seen from the paragraph in his reasons where he said:
The mother says the father has actively and maliciously alienated the child from her. I reject the suggestion the father has alienated [K] from her.
The only evidence that had been tested concerning the basis for K’s views was that given by the Family Consultant. It is true that the Family Consultant considered that K had been using her own words in expressing her views and also felt that she did not appear to have been influenced. However, the Family Consultant had interviewed K for less than an hour, and his prior involvement with the family had been quite limited.
In these circumstances, we doubt it was open to his Honour to reject so firmly the mother’s proposition that K had been alienated by the father. However, we accept his Honour could have safely made these findings:
· K had expressed a firm desire not to see the mother;
· she had done so in words that appeared to represent her own views;
· an experienced Family Consultant had formed the opinion that K appeared not to have been influenced by anyone in coming to her views.
His Honour could also have gone on to say that there was some reason to treat the mother’s allegations with caution, given the findings made by Buckley J, who had had the opportunity to assess the parents and their capacities to encourage a relationship between the children and the other parent. His Honour would have been entitled to have regard to Buckley J’s findings by application of s 69ZX(3)(b).
In any event, having rejected the mother’s primary case, his Honour accepted the father’s assertions that it was the mother who had been placing inappropriate pressure on the children. For example, he found that while K might be sad about not spending time with her mother, she would feel relief that “the pressure that has been brought to bear from time to time will disappear”.
Again, we have difficulty accepting that it was appropriate for his Honour to express his finding on this issue with such a degree of satisfaction. It is true K had made comments to the Consultant which strongly suggested that the mother had indeed been putting pressure on her; however, it needs to be kept in mind that statements made by children can be influenced consciously or unconsciously by those around them. In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
In making his finding that J’s views had not been influenced by the father, his Honour recorded that “on the evidence … the father has not sought to undermine the mother’s position”. As counsel for the mother pointed out, this statement paid no regard to the fact that the mother herself had given evidence which, if accepted, would indicate that the father had indeed sought to undermine her position. For example, the mother had alleged that the father had failed to consult her before attempting to change J’s school. This was in circumstances where the 2005 orders provided for the parties to have joint parental responsibility for J’s education. There was also other evidence from the mother and her witnesses about the father having taken steps to prevent K from seeing the mother. None of this evidence had been tested.
The trial Judge also found that the mother had displayed “certain persecutory tendencies” and had “ongoing clashes with the school authorities”. As counsel for the mother pointed out, the assertions the mother had made about the way J’s school had dealt with his poor academic performance might be right or they might be wrong, but no opportunity had arisen to test those contentions. His Honour appears simply to have rejected them out of hand. Nevertheless, our own reading of the transcript would indicate that it was open to his Honour to conclude that the mother had “persecutory tendencies”, quite apart from issues associated with her dispute with J’s school.
For example:
·in cross-examination the mother accused the Family Consultant of looking at her in a “very antagonistic way”, a proposition which his Honour was quick to dismiss from his own observation (Second transcript 29 September 2008, page 6);
·at another point the mother said to the trial Judge, “Well your Honour, as I’ve already said you keep looking at me. Stop looking at me” (Third transcript 29 September 2008, page 5);
·the mother accused the Court and the trial Judge of having “aided, very, very ably” the father in alienating the children against her (Second transcript 29 September 2008, page 12) and alleged that there was “a corrupt process in this Court room” (Transcript 30 September 2008, page 6);
·the mother accused the Family Consultant of having not said anything about K having any positive experiences with the mother (Second transcript 29 September 2008, page 15), yet just a few minutes earlier the Family Consultant had said that K had “described some positive aspects to her relationship with [the mother]” (Second transcript 29 September 2008, page 14);
·she misinterpreted evidence leading her to conclude that K had “completely fabricated” something she had said to the Family Consultant and that this had been “planted in her head by the father” (see Third transcript 29 September 2008, page 15, line 21 and compare Second transcript 29 September 2008, page 17, line 38).
Another criticism was made of the way in which his Honour dealt with the mother’s concern that J may have a learning difficulty. His Honour was somewhat dismissive of those concerns and said it would not be surprising if J was not performing well at school because of the ongoing conflict between his parents. There may be some substance in the submission of counsel for the mother that this comment was made in the absence of any evidence to suggest this was the reason for J’s performance. However, it must be kept in mind that his Honour was giving his reasons ex tempore and there is nothing untoward in a Judge drawing attention to the possible negative outcomes for children associated with prolonged parental conflict.
It was also submitted that the trial Judge had erred in finding that the mother was “consistently disparaging of [J’s] ability”. Particular criticism was made of his Honour’s statement that he had “the sense that, one way or another, [J] has picked up on this and it must be terribly destructive of his self esteem to know that his mother has this very strongly held view”. It was submitted there was no evidence to support the suggestion that the mother disparaged J’s performance (or if she had done so, that J knew about it). Hence there was no basis for suggesting that the mother’s views on J’s learning abilities may have impacted on his self esteem. Whilst we acknowledge there may be some substance in these submissions, it is again important to bear in mind that the reasons were given ex tempore. In our view his Honour was doing no more than musing on the possibility that J may be aware that his mother has a very low opinion of his performance at school and that this may have had an impact on the boy.
We turn now to consider the finding made by the trial Judge concerning the email received by the mother in March 2008. His Honour recorded that the mother disputed that J was the author of the email; however, he expressed his satisfaction “for present purposes” that J did, in fact, write the email.
We do not consider there was any basis upon which a positive finding could have been made that J wrote the email. J had not been asked by the Family Consultant whether he wrote it. Neither the father nor the mother had been cross-examined on the mother’s allegation that the father had drafted it. Apart from the fact that there had been no testing of the allegations concerning the authenticity of the email, we should also observe that examination of the email itself could give rise to at least some scepticism that a boy of J’s scholastic abilities could have written it, at least without assistance. We have noted that the Family Consultant gave evidence that it was “possible” that J could have written the email, but that clearly was not a sufficient foundation for a positive finding.
We do accept, as was submitted by the Independent Children’s Lawyer, that the content of the disputed email was consistent with what J said to the Family Consultant. However, we also accept the submission of counsel for the mother that J’s reasons for not wishing to spend time with the mother were not explained to the Family Consultant, and that it is reasonable to infer that his Honour would have considered the email as the “filling out” of J’s reasons.
It will be recalled that in dealing with the disputed email, his Honour said he was making his finding (i.e. that J wrote it) only “for present purposes”. We apprehend that in so qualifying his finding, his Honour was acknowledging that a conclusive finding could not be made. It is noteworthy that in giving his reasons on the previous day his Honour had made the same finding, but stressed that he did not “wish to be pinned down” on it.
It is important to recognise that we are here concerned with ex tempore reasons. Had his Honour the luxury of reflecting on his remarks it would be reasonable to expect that he would have expressed himself with greater circumspection on the controversial matters.
We also should keep in mind what Kirby J said in AMS v AIF (1999) 199 CLR 160 at 211:
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved.
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In approaching the challenging task of decision-making at an interim hearing, an experienced judge will be greatly assisted by being able to make an assessment of the parents. Ordinarily this is not possible where the parties are both represented and where all of the evidence is given by affidavit. However, in the present matter, both the mother and the father were self represented. The advantages a judge enjoys in such circumstances have been well described by Mr Justice Wilson (UK). His Honour said this in his 2002 Atkin Lecture, “The Misnomer of Family Law”:
… I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent, let us say for convenience, a father. One sees him in action throughout the case, not just when produced by the advocate for his performance in the witness box. One sees him when he is tired and under stress and whether he fails with good humour to cope with minor irritants such as the mislaying of a document. Furthermore, one sees him cross-examine the mother. Although the problem must be more acute in prosecutions for sexual offences, family judges have to guard against barbarity which sometimes affects the exercise. But, even if he is misusing the cross-examination in order to harass the mother, the father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside court, for example, whether handovers of the child between them would proceed sensibly, and to study their language including of the body, towards each other in that unenviable situation.
Whilst some of these remarks were directed to interactions during cross-examination, of which there was little here, the presence of a self represented litigant at an interim hearing does give the judge an opportunity to make assessments which could not otherwise be undertaken. For example, if the mother had been represented at the hearing, it may not have been possible for his Honour to have found that she has “a very forceful personality and one aspect of this forceful personality is her ability to be very assertive at times”. However, a finding to this effect may well be open where the judge had the opportunity to observe a self represented litigant presenting her case. In the present case, his Honour’s views found support in K’s description to the Family Consultant of her interactions with her mother.
It should also be remembered that the hearing with which we are concerned was not the first his Honour had conducted involving these parties. The matter had first come before him in January 2008 (mother’s submissions, p 1) and the proceedings were being dealt with as “child-related proceedings” under Division 12A of Part VII of the legislation. His Honour had presided over earlier contravention proceedings during which the parties had both presumably been cross-examined. He would therefore have had an opportunity to form an impression of their credibility and gain some understanding of the dynamics involved. Such involvement would be likely to provide some basis for forming an impression as to the probabilities of certain propositions being more likely to be accurate than alternative propositions.
We accept, however, that his Honour did not indicate that his findings were based upon his observation of the parties’ demeanour during the hearing or his assessment of their credibility in the earlier proceedings. Furthermore, an adverse finding on credit issues in earlier proceedings would not ordinarily provide a sufficient basis for individual findings of fact on controversial issues in subsequent proceedings. However, his Honour’s prior involvement in the case undoubtedly provided him with an opportunity to come to grips with some of the nuances involved which we, as an appellate court, do not have.
Ultimately we are persuaded by the submission of the Independent Children’s Lawyer that the findings made by his Honour on some controversial factual matters should not be seen as providing the ratio for his decision. We accept that his Honour arrived at his decision on the basis of the strong views expressed by the children that they did not wish to see the mother. In assessing the weight to be given to those views his Honour had the benefit of reading a large amount of affidavit evidence, and, more importantly, had the opportunity to assess the personalities of each parent during the hearing.
We think it worth noting in this context that at an early stage in the hearing on 29 September 2008, before the Family Consultant had interviewed the children, his Honour had warned the father in these terms:
…[T]he orders have been in place since 2005. You’re asking me to suspend significant sections of those orders. It’s not my usual practice to do that other than if there’s some compelling reason that has arisen so, anyway, we’ll tackle that.
These remarks indicate that his Honour was aware that he should not lightly interfere with orders which had been made after a long trial and which had been in place for more than three years. They tend to support the proposition that his Honour was moved to make the orders he did, not on the basis of the conflicting evidence that had been provided by each party, but rather by what emerged during the course of the hearing, namely the evidence of the Family Consultant concerning the wishes of the children.
In coming to our decision, we have not overlooked that his Honour was demonstrably incorrect in one finding he made. This was his statement that the mother seemed to have been “accepting” of the termination of her contact with J and had taken no contravention proceedings. The mother had, in fact, filed contravention proceedings concerning J. Furthermore, the mother’s evidence was that she had not been accepting of J’s refusal to see her and had sought to find ways of re-establishing her relationship with him. Given that his Honour had himself dealt with the contravention proceedings we suspect that what his Honour meant was that the mother had taken a very long time before she commenced any contravention proceedings after she ceased having contact with J. In any event, we are not persuaded that his Honour’s finding on this point formed the basis for his decision.
For these reasons, we have concluded that while there is substance in some of the propositions advanced on behalf of the mother in support of her primary complaint, our acceptance of those propositions does not provide a sufficient basis for appellate interference. Should we be wrong in so concluding, had we been called upon to re-determine the matter on the materials before the trial Judge we would have made an order suspending the mother’s face to face contact with the children. Our reasons for so concluding will be apparent from our discussion of the next ground of appeal.
Ground 2 – reliance upon the wishes of the children
We turn now to the complaint that the trial Judge relied too heavily on the expressed wishes of the children in coming to his decision. In dealing with this complaint we intend to restrict our attention to the way in which the children’s wishes impacted on the decision to terminate face to face contact. The issues associated with the order preventing the mother from initiating communication with the children will be dealt with separately later.
Counsel for the mother submitted that the children had been brought into the Court “out of the blue” and had been asked, without advance notification, to express their views about seeing the mother. Counsel submitted that this process, in itself, was such that the trial Judge should have proceeded with caution in apparently elevating the children’s views to the extent that they were conclusive of the outcome.
Counsel for the mother also submitted that:
·the views [K] had expressed were “circular” in that she had said to [the Family Consultant] she didn’t want to spend time with her mother or communicate with her because the mother would be angry with her because of the wish she had expressed not to see her;
·it is not an appropriate response to terminate contact “every time an 11 year old girl had an argument, even a decent barney with her mother”. This, it was submitted, would not be the way to ensure a child and a parent had the “meaningful relationship” emphasised by the legislation;
·the only basis upon which his Honour rejected even supervised contact was because of [K’s] recollection that people had “stared at her” when she was seeing her father under supervision, which his Honour inferred she found “unpleasant and embarrassing”.
Counsel for the mother drew attention to the fact that J’s interview had lasted only 15 minutes. He submitted that the outcome of the interview appeared to be no more than that J did not want any contact orders in place, with no reason being advanced. It was submitted that his Honour had simply taken the view that because J was nearly 15, and had said he did not want to spend time with his mother, this was the end of the matter. Indeed that proposition finds support in what his Honour had said the previous day that he could not recall a case in his many years on the Bench in which he had “allowed the future of a 15-year-old …to be the subject of litigation”. In this regard, counsel for the mother said that although it was not clear whether his Honour’s “general approach infected the decision”, such an approach was inconsistent with the legislation.
It was also submitted that any analysis of J’s views needed to take into account the attempts she had been making to repair her relationship with J in the face of what was claimed to be the father’s obstruction. It was further submitted that it may have been embarrassing or difficult for J that his mother was urging medical intervention for what she regarded as his ADHD. If the mother was right in asserting that J indeed had a medical problem which was impacting upon his education, counsel submitted that the question had to be asked how J’s welfare would be advanced by denying her contact and hence the opportunity to deal with these concerns.
It was further submitted that even if the Court was right in placing significant weight on J’s wish not to have contact orders in place, this did not mean it was in his best interests for an order to be made preventing the mother from initiating communication with him. As counsel for the mother noted, this went further than merely suspending the 2005 orders. It was submitted that such an order could not be supported by J’s expression of a wish not to be bound by any order of the Court.
Before discussing these submissions, it will be helpful to set out in full the evidence the Family Consultant gave about his interview with J.
HIS HONOUR: And you next interviewed - - - ?---I spoke to [J].
HIS HONOUR: Yes? --- [J] was very straightforward. He seems to be a reasonably mature child for his age, spoke openly and presented as having thought through the matters himself. He is very comfortable with the way things are for him at the moment. He describes how he sometimes contacts his mother of his own accord and has a chat with her. He is comfortable with that. He does not want to be subject to orders about his arrangements with his parents. He worries that his parents are in dispute.
HIS HONOUR: Can I just interrupt? He contacts his mother by phone? --- He rings her.
HIS HONOUR: Did you test how regularly that is?---He said about every couple of months.
HIS HONOUR: All right. Thank you. Carry on?---And has a chat. That’s what he told me. He – he says he’s comfortable with that. He – he’s not sure of his relationship with his mother and he says that at the moment they only talk superficially and that he’s not sure about what their long term in their relationship holds. He wants to be able to work that out himself with his mother when he feels comfortable and when he thinks she’s comfortable enough to do so. He’s not sure whether she wants to see him. He’s not quite sure whether he wants to see her but he wants it left open at the moment so that he and his mother can sort that out when they both are ready to do so. He does worry about his parents being in conflict and it does bother him but it’s not to the point where he wants to be excluded from everything that’s going on. He doesn’t – what he – he actually likes to know what’s going on which, if I can say, your Honour, is really typical of a 14 or 15-year-old child. They are a bit nosy about their parents’ business sometimes. He likes to feel empowered, if I can put it that way, by knowing what’s going on. It doesn’t bother him so much that he – he doesn’t want to be told but it – he does feel concerned about his parents when he sees his parents, particularly his father, being what he described as pressured, and that’s the word he used, by having to go to Court. He said his father doesn’t tell him about it or doesn’t show him documents but that he’s old enough to know when his father is, you know, sitting at the computer or reading documents or preparing documents because he’s old enough to know, not because he’s told. He would prefer that there were, as I said, no court orders that directed his life. He worries about his sister but he doesn’t really want to have any involved with the decisions about her. That’s probably all I’d say about [J], your Honour.
We accept there appears, at first glance, to be some substance in the complaint made concerning the “general approach” his Honour says he has always adopted in dealing with applications concerning children of J’s age. The legislation no longer differentiates between children on the basis of them having reached a certain age. As a matter of law, the Court can make parenting orders for a child up until the time they attain the age of 18 years. However, we consider his Honour adequately qualified his “general approach” when he said (our emphasis added):
I can simply observe that children of either sex when they hit 15 years of age, I place great weight on their views and on the way they conduct themselves. They normally, at that age, act in accordance with their own wishes and not what some judge is going to tell them.
J’s expression of wishes needs to be considered not only in the context that he is 15 years of age but also that he had not seen his mother for more than two years. He had ceased spending time with her following what his Honour described as a “serious altercation” in which the mother had locked J out of her house. He had, nevertheless, chosen to keep in touch with her by making telephone contact from time to time.
In these circumstances we do not consider that it was an inappropriate exercise of his Honour’s discretion to place the weight he did on J’s expressed wish not to be bound by any orders of the Court. There was no reason to assume that refusal to discharge/suspend the existing order for contact would have made it any more likely that J would actually see the mother. In this regard it will be recalled that in giving his reasons on 29 September 2008 his Honour had said this:
In particular I have had regard to the argument of the father that having regard to the expressed views of [J] it would be academic - I do not think that was his word but, in effect, it would be unenforceable, that if [J] was ordered to go and spend time with his mother, he simply would not stay with his mother and I am inclined to agree with that view.
The issues associated with the weight given to K’s wishes fall into a different category. She is three years younger than J. She had been having regular time with her mother until just a few weeks before the hearing before the trial Judge. Had his Honour not suspended the order for contact, it is possible that the mother would have resumed spending time with K pending the trial.
On the other hand, the mother had acknowledged that K is an intelligent and articulate child. What is more, the mother had said this in her affidavit sworn 11 September 2008:
The father has sought that Judge Barry speak to [J], but not [K]. This is because he knows that [J] who is very immature and lacks understanding, can be controlled easily by the father, unlike [K] who is of a “superior” intelligence and in the top 2% according to the … school’s assessor.
The clear inference to be drawn from the mother’s own statement is that any expression of wishes by K was likely to reflect her own opinion, and not that of the father. In this regard it will be recalled that the Family Consultant gave evidence that K expressed her wishes in a manner and using language consistent with a child who had not been influenced. In these circumstances, we are not persuaded that it was an inappropriate exercise of his Honour’s discretion to have given significant weight to K’s expressed wish not to spend time with the mother.
Whilst we accept that part of K’s reasoning may have appeared “circular”, we consider that the submission to this effect was an exercise in semantics. An examination of all of the evidence given by the Family Consultant will reveal that K had provided reasons for not wishing to see her mother, other than her concerns about her mother’s reaction to her saying she did not want to see her. (Second transcript 29 September 2008, pages 1 to 4, 10, 11, 14 and 18) In particular, we note the evidence of the Family Consultant that K told him that her mother had repeatedly accused her of lying and, in fact, had called “her a lying cow”. She had also told K that she did not want to have anything further to do with her. (Second transcript 29 September 2008, page 11) When asked by the father in cross-examination whether K had said why the mother had repeatedly called her a liar, the Family Consultant replied that K had said her mother had told her that “sooner or later somebody’s going to talk to you about what you want and how you understand things”. The Family Consultant went on to say that K had told him:
she recalled being interviewed in the past and she understood that her mother meant that that would happen again at some point in time, even though she didn’t know when, and [K] said that her mother accused her or said of her, when you do that, you will lie to them, as an accusation and [K’s] response was that no, she wouldn’t, and she said that her mother repeatedly said to her, even though she tried to say to her mother she wouldn’t lie, that the argument took the course of her mother saying to her, well, you will lie then. (Second transcript 29 September 2008, page 17)
Although we have accepted that his Honour’s decision to suspend the contact order was within the range of discretion, we are less convinced that it was appropriate not to have made an order for at least supervised visits. The father himself had indicated during the course of the hearing that he would support supervised visits, although he resiled from that view to some extent after hearing what K had said to the Family Consultant about supervised contact.
In our view, the comments K had made about people looking at her when she had supervised time with her father would not be a strong reason for excluding that option. However, it will be recalled that his Honour said he would consider supervised contact when the matter next came before him for mention. In the meantime, he hoped an Independent Children’s Lawyer would be appointed and he also wanted the parties to give consideration to ways in which the mother’s contact could be supervised.
We are not aware what transpired at the next hearing in December 2008; however, it seems that no arrangements were put in place for any form of contact between K and the mother. Given the concession made by the father at the hearing before us (namely that K was missing her mother) this is unfortunate; however, the appeal with which we are concerned relates only to what his Honour did at the hearing in September 2008. We are not satisfied that he erred in postponing consideration of supervised visits until an Independent Children’s Lawyer was appointed and further evidence was provided concerning potential supervisors.
Ground 3 – accepting the recommendation of the Family Consultant
We turn now to the complaint relating to the weight the trial Judge gave to the “recommendation” of the Family Consultant.
We assume this complaint arises out of paragraph 62 of the reasons, in which his Honour said this (our emphasis added):
… It is a heart wrenching decision, I can assure you for any Judge at any time to make a decision limiting a child’s contact with a parent. I only do it with the greatest of reluctance and only when the evidence compels me in that direction. The discretion a Judge exercises is a discretion that has to be based on evidence. I can only reject evidence if there are sound grounds for doing so. I see no basis for rejecting the evidence of [the Family Consultant]. There will be a degree of continuity in the children’s lives. They will be at the same school. They will spend all of their time in the father’s household. Previously, [K] did spend time in the mother’s household.
In making these observations it is not immediately apparent to which part of the evidence of the Family Consultant his Honour was referring. His Honour may have been referring to the evidence concerning what had been said in the Family Consultant’s interviews with the children and his assessment that there was no indication that their views had been influenced by the father. Alternatively it is possible he may have been referring to paragraph 42 of his reasons in which he had recorded that the Family Consultant had “ventured the opinion that he would be cautious about pressuring [K] to have a relationship with her mother”.
The submissions made by counsel for the mother concerned his Honour’s acceptance of the “brief recommendation” made by the Family Consultant. However, we think it is at least as likely that in declining to reject the evidence of the Family Consultant, his Honour had in mind only the evidence given concerning the wishes expressed by the children and the absence of any indication of influence by the father. In this regard it should be noted that the mother had challenged the qualifications of the Family Consultant to give evidence. The probability that in paragraph 62 of his reasons his Honour was not referring to the “recommendation” of the Family Consultant is increased when it is noted that that his Honour had expressly recorded that the Family Consultant had acknowledged it was “difficult to make full recommendations without a comprehensive assessment and that could not be done in the timeframe which was available”. The Family Consultant’s evidence would have been very fresh in his Honour’s mind. The Family Consultant had made clear that he was not purporting to make any firm recommendation when he said this:
… I'm – find[ing] it very difficult to make a strong recommendation, your Honour, because as has been pointed out I have interviewed the two children primarily to assess their views and their experience at the moment and I haven’t done a complete assessment that involves all of the family or looked at the - the past - past interventions and what may or may not have worked there. (Second transcript 29 September 2008, page 16)
In these circumstances we are not persuaded there is any substance in this ground. It was well open to his Honour to accept the evidence of the Family Consultant concerning the children’s wishes and his opinion that the children’s wishes appeared to be genuine.
Ground 4 – preventing initiation of communication with the children
We turn finally to the complaint directed specifically to the decision preventing the mother from initiating communication with the children.
This complaint, of course, must be considered in the context that up until the time of the hearing not only was the mother free to initiate communication with the children but she was entitled to spend four nights a fortnight with them. On any view, termination of her right to initiate contact was a draconian outcome.
However, apart from recording that K had told the Family Consultant that she was concerned her mother might be angry if they spoke on the telephone, his Honour gave no reasons which could be seen as directly supporting this part of the decision. We can, of course, draw an inference from consideration of the whole of his reasons that he was concerned that the mother would place “pressure” on the children if she was permitted to initiate communication. That in itself may be sufficient to sustain the decision; however, we consider that the real basis for the decision can be readily understood when reference is made to evidence given by the Family Consultant. This evidence was fresh in his Honour’s mind when he made his orders, albeit he did not refer to the relevant passages in his ex tempore reasons.
His Honour also foreshadowed what he proposed to do when he said at [37] that he would “be making directions as to the particular issues the parties [could] focus on” and further asserted that “the affidavits [were] to be limited to those issues”. At [39] his Honour also said that, “[a]t an appropriate time I will issue directions permitting the parties to file affidavit evidence for use at trial”.
His Honour then proceeded at [40] to [43] to give reasons “why [he did] not propose the child J to be the subject of any further litigation”.
The hearing before Barry J on 29 September 2008 proceeded in a very truncated way in that, with the exception of oral examination of the Family Consultant, there was no cross-examination of either the Father or the Mother.
When the hearing resumed on the morning of 30 September 2008 Barry J first said that he was in a position to deliver his reasons. There was then some discussion between his Honour and the Mother including the tender by the Mother of emails between the Mother and the child K.
On 30 September 2008 Barry J made the following orders:
(1)That the Father have sole responsibility for all long term and short term decisions concerning the care, welfare and development of the children, [J] born …1993 and [K] born …1997.
(2)The Father is not to change the schooling of the children without the written consent of the Mother or further order of the Court.
(3)Orders 3, 4, 5, 6, 7 9 and 14 of the Orders of the Honourable Justice Buckley dated 10 June 2005 are suspended.
(4)The children are at liberty to communicate with the Mother by telephone, mail or email at any time.
(5)The Mother is not to telephone or attempt to telephone either child.
(6)The Mother is not to have physical contact or attempt to have physical contact with either child.
(7)Notwithstanding any other provision in this Order the Mother may spend time with the children at all such times as the parties may mutually agree in writing.
(8)The Mother is to be at liberty to respond by email to any email communication from the children but that such response is to be limited to one response per communication from each child.
(9)The Mother may send cards to the children on special occasions such as Christmas, Easter or the children’s birthdays.
IT IS ORDERED:
(10)The proceedings be adjourned for case management review and trial directions to 9.30 am on 8 December 2008 at the Brisbane Registry of the Family Court.
(11)The proceedings be set down for trial for three (3) days commencing 10.00 am on 6 April 2009 at the Brisbane Registry of the Family Court.
(12)Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
In the reasons of Boland and Thackray JJ there is a very thorough analysis of the reasons delivered by Barry J on 30 September 2008. In my view, the reasons of his Honour of 30 September 2008 also require careful consideration. However, in so doing I am very mindful of what Kirby J said in AMS v AIF (1999) 199 CLR 160 at 211 about an “overly critical, or pernickety, analysis of the primary judge’s reasons”: see also Rollings v Rollings (2009) 230 FLR 396. I am also mindful that his Honour delivered reasons on the day after the hearing and that the time available for reflecting on his remarks was limited.
At [21] Barry J commenced to address the evidence given the previous day by the Family Consultant. As to the evidence of the Family Consultant, in relation to the child K, his Honour said:
23.During the interview process, [K] told [the Family Consultant] she wished to avoid conflict and, to that end, expressed a view not to see her mother at the present time. The child expressed the view that when she was with her mother if there was a disagreement she had to keep the peace by, in effect, pretending to agree with her mother. [K] recounted she had arguments with her brother over TV channels and food but they were normal type of arguments. The type of arguments with her mother were unusual and placed enormous stress on her.
24.At that point in time during his evidence, [the Family Consultant] did not elaborate on the nature of the arguments between mother and daughter. However, he recounted that the child expressed the view that she was concerned her mother would be angry with her if there was communication by phone or even if there was supervised time because of the views that she was expressing in the interview process. Earlier in her life, the child had had supervised time with her father. The father says that this was for a period of four or five months from September 2002 and from late 2004 through till about June 2005, a period of some eight months. I assume for the present purposes this was at a time when the mother was making allegations the father had sexually abused [K]. Such allegations have subsequently been discounted but the mother still persists in making them.
25.The child commented that her recollection was when she had periods of supervised time that people stared at her. I infer she found the process unpleasant and embarrassing. The child expressed a wish to communicate with her mother by email. She also expressly referred to wanting to receive cards from her mother for birthdays and special occasions. [The Family Consultant] was of the view that the child expressed herself in her own language and he was further of the view that she expressed herself with her own words. He was of the opinion her emotions were congruent with her words. He did not accept suggestions put by the mother that the child had been alienated from her by the father. He was of the opinion that the child gave no indication of having been alienated. There was no indication of her having been coached.
26.[The Family Consultant] had the sense the child was speaking from her own experiences. She was not expressing herself in black and white terms. I infer from this that that would be one indicator if there had been a degree of alienation or some form of coaching. (emphasis added)
Senior counsel for the Mother submitted to us that what his Honour said at [24] in the second sentence presented “a conundrum”. It was submitted that it is “circular” because the child K expressed the view to the Family Consultant that if the Mother found out that the child said that she did not wish to spend time with the Mother then the Mother might be upset and this might cause a problem (Transcript 4 August 2009, page 15). I am of the view that there is some merit in the submissions of senior counsel. It was submitted that given what his Honour referred to in relation to what the child said about an argument with her mother and the reasons for the views she expressed it was hardly an “appropriate judicial response” to suspend the existing regime (Transcript 4 August 2009, page 16).
His Honour then at [27] dealt with the child J and the evidence of the Family Consultant about the interview with this child.
At [28] his Honour dealt with the e-mail dated 11 March 2008 that the child J sent to the Mother. His Honour found that the child did write the e-mail. This was contested by the Mother. I accept the submissions of senior counsel for the Mother that his Honour was in no position to make any finding that the e-mail was written by the child and represented his views.
His Honour then at [29] returned to the child K and said: “The mother says the father has actively and maliciously alienated the child from her. I reject the suggestion the father has alienated [K] from her”. Thus, his Honour made a very important finding. He then appears to have given reasons for this finding.
I observe that his Honour said at [33]: “I note that the mother persists in claims the father has sexually abused [K] yet the father has managed to engage in what she refers to as toxic alienation of the child”. It was submitted, and I accept, that the previous allegations of abuse were of little moment in the proceedings before his Honour and this is apparent from the transcript.
His Honour then at [34] commenced to address the relevant statutory considerations and authorities. After identifying at [37] the “material’ before him and at [38] to [39] the proposals of each party, and in particular the proposals of the Mother, his Honour at [40] returned to the evidence of the Family Consultant. In relation to the Family Consultant’s interview with the child K, his Honour said:
42.He ventured the opinion that he would be cautious about pressuring [K] to have a relationship with her mother. I understood that to infer that often putting pressure on a child can be counter-productive. He acknowledged it was difficult to make full recommendations without a comprehensive assessment and that could not be done in the timeframe which was available. He did not rule out supervised visits at some point. (emphasis added)
His Honour then at [43] discussed what he said were the “issues” for the Father. For my part, I had some difficulty understanding precisely what was happening at this part of the reasons. However, his Honour then at [45] to [46] returned to what would happen in relation to the applications for final orders and said that he proposed to adjourn “the matter to a date in late November” and:
47.I am fully expecting that by that adjourned date, whether it be late November or early December, the independent children's lawyer will be appointed but will not have had a great opportunity to advance the matter but may be in a position to make some submissions as to future progress. At that time, I will review the question of supervision.
48.I do not, for one moment, want to be critical of contact centres. They play a significant role in being able to facilitate time between parent and children but [K] has expressed her views about being uncomfortable in that environment. I believe the mother would be uncomfortable in that environment except that she would do anything necessary to see her daughter but what I am suggesting is that coming towards Christmas if there could be an outbreak of peace and the mother put forward some names of persons that the father knows, a person who could be considered reliable, trustworthy, a person of integrity. I do not know whether there are any mutual friends or whether they have all aligned themselves with one side or the other. It may be the father could put forward some names. Somebody he knows who would be prepared to supervise time. It would make my task a lot easier if the parties were to agree on somebody and [K] could be seen and comforted to say that she can spend time with her mother secure in the knowledge that there would be no risk of an incident or argument or disagreement.
49.It is not a situation where the father's approval is vital. The Court retains a residual discretion to approve somebody in any event. I do urge the parties to consider that as a possibility. It could be arranged for [K] to see somebody to reassure her about this person. It would really, of necessity, have to be somebody who [K] knows and trusts. At this point in time before indicating what orders I propose to put in place, it is necessary for me to consider the subsections of s 60CC. I assume the parties have some familiarity with that process. (emphasis added)
The written material his Honour identified in his reasons was at [6], namely, the Father’s affidavit of 8 August 2008 to which was annexed an affidavit of 23 July 2008; at [10] the Mother’s affidavit of 10 September 2008; at [28] an email dated 11 March 2008 that the child J sent to the Mother and at [32] the e-mails the Mother put in evidence on 30 September 2008. Then later in his reasons at [37] his Honour identified affidavits of the Mother of 26 August 2008, 11 September 2008 and 24 September 2008. In discussion on 29 September 2008 there was a passing reference to “volumes” of material. However, it is not established that his Honour read any of that material.
His Honour, in fact, adjourned the matter to 8 December 2008. However, the orders he made were expressed to be until further order and not until the adjourned date. Further, I understand that the review that his Honour contemplated would occur on the adjourned date did not happen.
Consideration of what his Honour said, particularly at [47] to [48] suggests that he had decided that he would grant the relief sought by the Father but would later consider the possibility of the child K spending supervised time with the Mother. However, as seen at [49] he concluded by saying: “At this point in time before indicating what orders I propose to put in place, it is necessary for me to consider the subsections of s 60CC. I assume the parties have some familiarity with that process”.
His Honour then identified the two primary considerations in s 60CC(2) of the Act and said:
51.Before embarking on that aspect, however, I want to digress and consider the issue of parental responsibility. As I have said, there is a presumption of joint responsibility. An order to that effect has been in place since 2005 and it has been an unmitigated disaster in my view. That is reflected in the fact that each of the parties seeks an order for sole parental responsibility. Neither party contends that the order for joint responsibility should remain.
52.In a situation where both the children are in the full time care of the father and the mother has limited time with [K] up till now and no time with [J], it is appropriate, in my view, to order on an interim basis that:
His Honour then made an order and although it is not readily apparent from his reasons I assume that his Honour made what is now order No 1 being that the Father have sole responsibility for all long term and short term decisions concerning the care, welfare and development of the two children. I have difficulty ascertaining what his Honour’s reasons were for this order. His Honour may have also made order No 2.
His Honour then said at [54] that he would “return to a consideration of s 60CC”. I am not going to repeat what his Honour said at [54] to [56]. I suspect that his Honour was still dealing with the primary considerations because he said at [56] that: “There is no suggestion of any physical harm. I refrain from making any finding at this point in time in relation to the child being subjected to abuse and neglect. Certainly, there is no suggestion of neglect but whether there has been psychological harm in the conduct of either party is best viewed on another day”.
His Honour then proceeded at [57] to deal with the “additional considerations” being the matters in s 60CC(3) of the Act and he said:
57.In relation to sub-s 3, it deals with the additional considerations and the first one is the views expressed by the child. I accept that both children have expressed relatively strong views to have no physical time with their mother at the present time. On an interim basis, I place considerable weight on this fact, having regard to the ages of the children and the acknowledged intelligence of [K]. (emphasis added)
See also [77].
Counsel for the Independent Children’s Lawyer submitted to us that “the essential basis upon which his Honour found was the wishes of the children expressed to” the Family Consultant. Importantly, however, counsel for the Independent Children’s Lawyer also submitted to us that it was appropriate for his Honour to place “the weight he did [on the wishes of the child [K]] given that it was going to be for a finite period of time”. I do not consider the period since late September 2008 qualifies as a “finite period of time”.
His Honour then at [58] dealt with s 60CC(3)(b) of the Act and said, “[a]t the present time, I would have to observe that the mother's relationship with both children is problematic”. At [59] he said: “I observe that, in my view, the mother has a very forceful personality and one aspect of this forceful personality is her ability to be very assertive at times. I expect, in certain circumstances, this behaviour can be perceived as intimidating particularly for a young child”. His Honour said nothing about the relationship of the Father and the children. Senior counsel for the Mother submitted, and I agree, that what his Honour said at [59] is “troublesome” and amounts to “projecting his own views” on the child K.
His Honour then at [60] dealt with s 60CC(3)(c) of the Act and in so doing made an important finding, namely: “I can only observe that, on the evidence before me, the father has not sought to undermine the mother's position”. Senior counsel for the Mother submitted, and I agree, that what his Honour said was a conclusion of fact, relevant to the orders made, which either rejected or ignored the Mother’s evidence.
His Honour then at [62] dealt with s 60CC(3)(d) of the Act and what he said appears to have been in support of what he had already determined. He said:
62.… It is a heart wrenching decision, I can assure you for any Judge at any time to make a decision limiting a child's contact with a parent. I only do it with the greatest of reluctance and only when the evidence compels me in that direction. The discretion a Judge exercises is a discretion that has to be based on evidence. I can only reject evidence if there are sound grounds for doing so. I see no basis for rejecting the evidence of [the Family Consultant]. There will be a degree of continuity in the children's lives. They will be at the same school. They will spend all of their time in the father's household. Previously, [K] did spend time in the mother's household. (emphasis added)
Senior counsel for the Mother made a number of submissions in relation to what his Honour said at [62]. It was submitted that there was no compelling evidence that the orders be made and certainly none that was “not the subject of contention between the parties”. Next, it was submitted that given that his Honour said that he could only reject evidence “if there are sound grounds for doing so” he could not properly have rejected the evidence of the Mother in relation to controversial matters.
As to what his Honour said at [62] about there being “no basis for rejecting the evidence of” the Family Consultant, senior counsel for the Mother submitted that it is not clear what his Honour meant. On the one hand, if his Honour simply meant that the Family Consultant “faithfully recounted” what the children told him than there is no issue. However, if his Honour meant that the Family Consultant made recommendations on the ultimate issue that should determine the matter then in the circumstances it was plainly wrong.
Then his Honour said:
63.I expect she will [be] sad at not spending time with her mother but, at the same time, there will be relief that pressure that has been brought to bear from time to time will disappear. I propose to put in place an order empowering the children and it be a substituted order to apply to both [K] and [J]. In light of the mother's submissions this morning, I propose to make orders about [J]. …
Senior counsel for the Mother submitted, and I agree, that his Honour thus made another important finding in relation to a controversial issue, namely, that the Mother had brought pressure to bear on the child K.
His Honour then made an order. Again, it is not readily apparent from his reasons what order he made. However, I assume that he made order No 3 being the suspension of the orders made on 10 June 2005.
For some reason, which in my view is not apparent, his Honour continued to deal with the statutory considerations. At [65] his Honour dealt with s 60CC(3)(e) of the Act which he said was not relevant.
At [66] his Honour commenced to deal with s 60CC(3)(f) of the Act being the capacity of each of the child's parents and any other person to provide for the needs of the child including emotional and intellectual needs and continued at [67] to [71]. In dealing with this consideration his Honour made a number of critical findings about the Mother. At [66] he said: “I have to place on record that the mother does display certain persecutory tendencies”. At [70] he said: “Any objective assessment of the mother's voluminous affidavit material would indicate she is consistently disparaging of [J's] ability”.
In discussion before us counsel for the Independent Children’s Lawyer conceded that given the Mother had not been orally examined, in so far as his Honour was going to make findings about the Mother based on his observations of her, his Honour should have made her aware that he was going to do that and given her the opportunity to respond. In any event, it was submitted to us by counsel for the Independent Children’s Lawyer that what Barry J said about the Mother did not form part of the ratio of his reasons in relation to how to deal with the children on an interim basis.
His Honour gave at [72] to [73] what he described as his “homily to litigants” and then at [74] to [75] referred to “numerous studies”. He concluded at [76]: “The other factors that I am required to take into account are either not relevant or I have already dealt with them in adequate detail. For these reasons given, I propose to make the following orders. All of the orders will be until further order”. Thus, his Honour did not consider that the matters in s 60CC(3)(g), (h), (i), (j), (k), (l) or (m) of the Act were relevant. Given what his Honour said in his reasons I would have thought that at least the matters in s 60CC(3)(g) and (i) were relevant.
His Honour then made orders and again it is not apparent from the reasons which orders were made. However, he continued and said:
77.I will digress from the making of the orders to say that having heard the mother's submissions about [J], it occurred to me that one parent or the other is going to need parental responsibility for the child's ongoing education. The alternative is to invite chaos in the present climate and once I have to make an order about parental responsibility, I would have to make other orders about whether [J] is required to spend time with his mother. I can simply observe that children of either sex when they hit 15 years of age, I place great weight on their views and on the way they conduct themselves. They normally, at that age, act in accordance with their own wishes and not what some judge is going to tell them. (emphasis added)
Counsel for the Independent Children’s Lawyer submitted to us that what Barry J said about the views of the children was the gravamen of the decision. Senior counsel for the Mother submitted that given what his Honour said at [77] about how he deals with the views of children of the age of 15 years this cannot have been the fundamental basis for the decision in relation to the child K.
His Honour then made another order and again I do not know which one he made. Then after having said at [79] that the parties could always reach an agreement as to what should take place his Honour made another order.
His Honour concluded:
80.The order that I indicated yesterday in relation to [J] is not issued. Upon reflection, I need to be able to determine the issue of sole responsibility. Decisions need to be made about his education, health and other aspects of his life.
81. The mother also challenged a direction I proposed that the parties not file any further material. The mother requested that the matter proceed according to the less adversarial trial process. The father did not dissent from that view. All matters filed after 1 July 2006 are to be dealt with by that process. It is a given that when matters are in the LAT system, a direction is made under that process that there is to be no further material filed. In this case, I will amend the direction that neither party is to file any further material without the leave of myself or, in the event of my absence, another judge of this Court.
On 27 October 2008 the Mother filed a Notice of Appeal against the orders made on 30 September 2008. On 8 December 2008 the Mother filed an amended Notice of Appeal in relation to orders 2, 3, 4 and 5 made on 29 September 2008. We are only concerned with the appeal against the orders of 30 September 2008.
It would appear that nothing happened in December 2008 as his Honour had anticipated.
As seen, his Honour made an order that the proceedings be fixed for final hearing for three days commencing on 6 April 2009. On 30 January 2009 an order was made in chambers vacating these trial dates.
On 26 February 2009 an order was made dismissing an application by the Mother for a stay of the orders of 29 and 30 September 2008. Further, an order was made that the Father present the children to a family consultant on a date and place to be determined to explain to the children their rights and entitlements pursuant to the orders made on 29 and 30 September 2008. I also observe that on 26 February 2009 his Honour made an order that the contravention application filed by the Mother on 1 February 2008 be dismissed. There is no explanation for why the opportunity was not used on 26 February 2009 to carry out the review that was intended would happen in December 2008.
Almost 15 months has expired since the orders were made and I assume that in this time there has been no face to face contact between the Mother and the child K. It is more than two years since the proceedings commenced. This is in circumstances where counsel for the Independent Children’s Lawyer submitted to us that the “basis of his Honour’s decision was that he anticipated there be a trial in April of this year”.
There may be a very good reason why on 30 January 2009 an order was made in chambers vacating the further hearing dates in April 2009 of the applications for final orders but it is not apparent to me. However, in the absence of any or any adequate explanation, I am of the view that the trial should have proceeded on the allocated dates. I would not accept as an adequate explanation for postponing the further hearing of applications for final orders that an appeal against interim orders was pending. I observe that senior counsel for the Mother submitted to us, and I agree, that our decision about the interim order ought not to “impede the process to the final trial” and that the final hearing may be heard and determined before we gave our judgment. (Transcript 4 August 2009, page 60). In my view, unless there are very good reasons, the hearing or further hearing of applications for final parenting orders should never be deferred to await the outcome of an appeal against interim parenting orders.
CONCLUSION
General
It has to be remembered that the arrangement put in place by the orders of 10 June 2005 whereby the child K spent half of each school holiday period and four nights in each fourteen day period during the school term with the Mother had continued for in excess of two years before the current proceedings were commenced and in excess of three years before it ceased in late July 2008. So far as the Father is concerned it was only after July 2008, being some ten months after the proceedings commenced that he sought to vary the orders of 10 June 2005.
Barry J also made some important findings, namely:
§the child K loves her mother: at [31];
§in the past the Mother has been a full time carer: at [58];
§the Mother has the interests of both children in mind in acting as she has: at [58];
§the child K will be sad at not spending time with her mother: at [63]
I bear in mind that at the hearing before us a number of important admissions were made by both the Independent Children’s Lawyer and the Father.
Counsel for the Independent Children’s Lawyer said:
§the child K is still quite able to and has maintained contact with the Mother (Transcript 4 August 2009, page 48);
§the Mother has maintained contact with the child K (Transcript 4 August 2009, page 48);
§the restriction on the Mother contacting both children should be removed (Transcript 4 August 2009, page 48);
§there have been appropriate e-mail exchanges between the child K and the Mother (Transcript 4 August 2009, page 48);
The Father said:
§the child K finds it difficult because she does miss the Mother (Transcript 4 August 2009, page 55);
§he believes that the child K “misses her mother” (Transcript 4 August 2009, page 58);
§he supports the Mother having “contact” with the child K provided it is “done or managed in a safe way” (Transcript 4 August 2009, page 55);
§he would like to see some physical contact between the child K and the Mother if it was done in such a way that the child feels safe (Transcript 4 August 2009, pages 56 and 58);
§it was never the intention that there be an order refusing the child J “contact” with the Mother (Transcript 4 August 2009, page 56);
§the child J never wanted an order refusing him “contact” with the Mother (Transcript 4 August 2009, page 56).
I observe that there is no issue that the child J has had “learning difficulties” and that an educational assessment should be undertaken of the child.
I also observe that in relation to the Mother’s further evidence the second group of documents was a series of emails between the child K and the Mother from 14 September 2008 onwards and some emails from the child K to other children. It was submitted on behalf of the Mother that these demonstrated, on their face, communications of a loving and relaxed nature between the child K and the Mother, which it was submitted was “indicative of things other than the sort of application of pressure” found by his Honour. I agree that it would not be appropriate to treat everything said by the child K in the emails as being factually correct. However, in the absence of examination of the material which has not taken place, I will not attempt any explanation of why the child wrote what she did.
Grounds of Appeal
At the outset I record that notwithstanding some concerns about the manner in which the litigation has progressed and the manner in which the hearing was conducted before his Honour, no complaints about such matters are made by the Mother. As the matter was argued before us there were four key issues which are articulated in the reasons of Boland and Thackray JJ at [74] as follows:
§the trial Judge erred in that he made findings of fact against the Mother when the evidence did not support the findings or was contentious;
§the trial Judge erred in that he placed too much weight on the expressed wishes of the children;
§the trial Judge erred in that he relied upon the “brief recommendation” of the Family Consultant in circumstances where the Consultant had not given a considered expert opinion; and
§the trial Judge erred in that he had not identified any proper basis for making the order preventing the Mother from initiating contact with the children.
In my view, the issues should be considered together as it is not possible to disconnect them. In other words, it is not possible to say that notwithstanding his Honour was in error in making findings in relation to contentious issues it does not matter because ultimately he made the decision on a basis that was unrelated to those contentious issues.
There can be no doubt, as was submitted by the Independent Children’s Lawyer, that the reason why Barry J made the orders terminating face to face contact between the Mother and the child K was because of the evidence of the Family Consultant as to the views of the child. Other than what the Family Consultant said he was told by the child K there was no direct evidence of the views of the child. The Father had made an allegation in his affidavit but what he said was not evidence, or if accepted, very little, if any, weight could be placed on what he contended.
The children were then brought to Court “out of the blue” and were asked, without notification, to express their views about seeing the Mother. His Honour then obtained what I describe as an oral interim wishes report where in a very limited time a Family Consultant only interviews the children for the purpose of ascertaining their views and then gives some brief oral evidence of what he or she was told. The Father and the Mother were given the opportunity to cross-examine the Family Consultant but in circumstances where, as I have already observed, they were both unrepresented and had no prior notice of what the evidence would be. Thus, in my view, very little weight can be placed on the fact that the parties had the opportunity to cross-examine the Family Consultant.
The Family Consultant gave evidence that “at the moment” the child K did not “wish to have any contact with her mother in the foreseeable future” (Second Transcript 29 September 2008, page 2). The Family Consultant also gave evidence that the child K “was talking in her own language with her own words” and was not reciting the views of the Father (Second Transcript 29 September 2008, page 3). The Family Consultant gave evidence that he had “the impression at this stage that [the child K] was speaking from her own experience” (Second Transcript 29 September 2008, page 4).
In my opinion, consideration of the evidence of the Family Consultant reveals that he was obviously mindful of the very limited task that he had undertaken. The Family Consultant made it clear that he only interviewed the children for the purpose of ascertaining “their views and their experience at the moment” and that he did not undertake a “complete assessment” (Second Transcript 29 September 2008, page 16). In so far as the Family Consultant made any recommendations there were only two (Second Transcript 29 September 2008, page 16). The first was, “to be cautious about pressuring [the child K] to have contact with her mother”. The second was “that there be some way of maintaining communication between [the child K] and her mother if at all possible”.
His Honour made orders that resulted in the suspension of the established regime. The orders were made on the basis that in December 2008, being a period of say two months, there would be consideration of whether the Mother should have supervised time with the child K, and, in April 2008 the hearing of the applications for final orders would be concluded. However, none of this had happened and given that the orders were expressed to be until further order, I approach the matter on the basis that the orders were made with the intention that the suspension of the previous regime may persist, as it has, for a considerable period of time.
His Honour ultimately placed very significant weight on the views of the child K as relayed by the Family Consultant. This was in the circumstances where, as I have outlined above, this was the only or only reliable evidence of the views of the child. The issue then arises as to why in the circumstances of this case his Honour placed such significant weight on those views such that he made an order suspending for an indefinite period what was an established regime. Why did his Honour not consider a supervised regime of limited duration?
As Boland and Thackray JJ point out at [82] and [83] of their reasons, the thrust of the Father’s case was that the views expressed by the children were based on the “enormous psychological pressure” the Mother had subjected the children to and their response to that pressure. The thrust of the Mother’s case was that the negative attitude of the children towards her was a result of the efforts of the Father to alienate the children. As their Honour’s observe, the resolution of that controversy involved an ultimate finding of fact, which in turn, would necessarily have involved other findings. Barry J found against the Mother on this “central issue” and he did so without equivocation.
I observe that it is not contended that there is any concern about the physical wellbeing of the child K and when the Father told us that he supports the Mother having “contact” with the child provided it is “done or managed in a safe way” he was referring the emotional wellbeing of the child. The “central issue” is concerned with the emotional wellbeing of the child.
The question that I pose is what weight would his Honour have placed on the views of the child K if he had made a finding accepting the Mother’s contention. The answer is probably that in those circumstances his Honour could place very little weight on the views of the child or at least not sufficient weight such as to justify the suspension of the established regime. In my view, it is therefore apparent that he placed significant weight on the views of the child K because of the findings he made in relation to the contentious issues. It did effect the final result. Another way of approaching it is to question why otherwise, did his Honour have to make any findings on the controversial “central issue” if it had no relevance to his ultimate decision.
As Boland and Thackray JJ also point out at [105] of their reasons the trial Judge arrived at his decision on the basis of the strong views expressed by the children that they did not wish to see their Mother. Their Honour’s are of the view that in assessing the weight to be given to those views, his Honour had the benefit of reading a large amount of affidavit evidence, and more importantly, had the opportunity to assess the personalities of each parent during the hearing. In my opinion, the trial Judge also took into account the findings which he should not have made in relation to the controversial issues. Thus, the weight that he placed on the views of the child was significantly undermined. In the result, his Honour fell into error in determining the weight that he placed on the views of the child. I am also of the view that in the circumstances of this case, when the outcome is considered, the discretion his Honour had did miscarry.
There is a further important matter. In my view, the admissions that were made to us by the Independent Children’s Lawyer and the Father reveal that the decision his Honour made based on the wishes of the child K was erroneous. It is not controversial that the child K “misses her mother” and the Father supports the Mother having physical contact with the child provided it is “done or managed in a safe way”. These matters also controvert the basis on which his Honour made the orders.
The Mother, the Father or the Independent Children’s Lawyer could make, and, in my view, should have made, an application for interim orders in light of what we were told at the hearing. However, this has not happened and thus we are seized with the matter.
In conclusion, I would allow the appeal and remit the matter for rehearing before a judge other than Barry J. However, in so doing, I make it very clear that I would hope that common sense would prevail and that all efforts would be made to conclude the hearing of the applications for final orders and that there would be no need for further interim proceedings.
I certify that the preceding two hundred and sixty nine (269) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 5 February 2010
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