SS and Ah

[2008] FamCA 823

FAMILY COURT OF AUSTRALIA

SS & AH [2008] FamCA 823

FAMILY LAW – CHILDREN – Appointment of Independent Children’s Lawyer

APPLICANT: SS

RESPONDENT: AH

FILE NUMBER: BRF 1070 of 1999

DATE DELIVERED: 29 September 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 29 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Mother appeared in person

COUNSEL FOR THE RESPONDENT: The Respondent Father appeared in person

Orders

IT IS ORDERED THAT:

1. The interests, in these proceedings of the children, J born in October 1993 and K born in September 1997, be independently represented by a lawyer and it is requested that Legal Aid Queensland arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia in Brisbane.

1. Upon the appointment of an Independent Children’s Lawyer, the Independent Children’s Lawyer is to engage a psychiatrist to assess the Mother and Father, but not the children.

1. Upon the appointment of an Independent Children’s Lawyer, the Independent Children’s Lawyer be given leave to inspect the Family Court file and forward such material to the psychiatrist engaged to assess the Mother and Father.

1. The parties are prohibited from filing any further material regarding contraventions or children’s matters without leave of Justice Barry or in his absence another Judge of the Family Court.

1. The matter be adjourned to 9.30 am on 30 September 2008 at the Brisbane Registry of the Family Court.

NOTATION:

Legal Aid Queensland is requested to give favourable consideration to the request for the appointment of an Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment under the pseudonym SS & AH (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 1070 of 1999

SS

Applicant

And

ah

Respondent

REASONS FOR JUDGMENT

1. The issue that has been held over from the hearing on 23 July is an important issue whether children's issues generally should be reopened.  I have reserved my decision on this question from that date.

2. In her application filed on 8 October 2007, the mother sought orders that the children live with her, that the children spend limited supervised time with the father to accommodate their needs and best interests.

3. There was an order sought which I struck out seeking the renewal of the children's UK and Australian passports. 

4. The Applicant Mother sought the issue of subpoenae to various parties without any specificity and I dismissed that application. 

5. A further order that was sought was for full educational, medical and psychological assessment and support of the child J and support his learning needs with a particular person to be appointed to tutor J.

6. Paragraph 7 was for the appointment by Court order of either Dr V, Dr L and Mr G, Dr C and Ms Y to fully assess and monitor J's ADHD, learning difficulties and need for medication when required. 

7. Order 8 was ongoing monitoring of J and support.

8. Nine was for the findings and consultations of all specialists and Court mediators, be non-confidential and fully reportable to the Court and all parties.

9. Ten was that the mother and father each pay to each specialist half of the associated costs for the children. 

10. Order 11 was that if the specialists advise in writing that they would like the mother and father jointly separately to attend at their rooms with or without the children, the mother and father do this.

11. Twelve was that PACE alerts be placed on the children's passports.

12. Thirteen related to the Child Support Agency, as did 14 and 15.  I explained the Court no longer had jurisdiction to make those orders and I struck those applications out.

13. In relation to 16, the mother sought an order that the father be prohibited from collecting the children from school at any time.

14. Seventeen was that the father be prohibited from attending at the children's extracurricular activities, whether associated with the school or not, up to and including 30 April this year.

15. Eighteen was that the school provide within 14 working days all information in writing relating to J and K at the school once they were requested by either the mother/father in writing.

16. Nineteen was that the school ensure that both the father and mother are granted access to all information regarding their children, including but not limited to access to the parent lounge, parent/teacher meetings, copies of test results, any other information relevant to the education and schooling of the children.

17. Twenty was that the father pay the costs of and incidental to these proceedings and ensuing proceedings.  I pointed out that the Court could not possibly make an order now in relation to ensuing proceedings and I struck that passage of that application out.

18. There were also at that time filed a number of contravention applications.  I indicated I had no intention of hearing all of the contravention applications.  I directed the mother to select a given number as her best counts of contraventions and to proceed on those and to provide full particulars.  Thereafter various delays occurred as a result of a misunderstanding by the applicant as to the direction to supply particulars in relation to which particular contraventions. 

19. When the matter was before the Court on 23 July I dealt with the contraventions first.  After the evidence was taken I made various rulings  dismissing three contraventions and reserving judgment on a fourth.  There was then the Rice v Asplund argument put forward by the father; that is, the mother should not be permitted to bring further applications relating to children's issues before the Court as there had been no significant change since the 2005 orders.

20. My natural inclination would normally be to lean to the view that more litigation is not in the best interests of children, particularly children of the age of the subject children where the litigation contest has been ongoing since 1999 with two lengthy trials in 2000 and 2005.  I note the mother agrees with this view.  In written submissions handed up on 23 July 2008 at page 2 she says:

    The best interests of the children must remain the paramount and overriding factor in all instances.  Of course the aim is to protect children from ongoing litigation and I fully accept and understand that.

21. In the balance of her submissions, she addresses why there has been significant changes since the 2005 orders.  One obvious example is that Buckley J made orders for joint parental responsibility and at the present time each party seeks sole parental responsibility.  In my view that alone is sufficient to reopen the children’s issues.  It is difficult to determine that issue without also considering the all important issue of who should be the primary carer, if indeed there should be a primary carer.   It is difficult to give sole responsibility to a parent who is not the primary carer.  It is possible but, in my view, would need special circumstances.  I do not overlook the possibility that a Court could order equal time with each parent and still have to consider whether responsibility should be sole or joint.  That is particularly so where neither parent is seeking an order for joint responsibility and where there appears to be almost a complete breakdown of any form of communication between the parents.  In any event recent events have overtaken this issue.

22. Since the weekend of 7 August 2008 the applicant is no longer seeing her daughter.  That has continued to the present time. 

23. The respondent now seeks orders by an application in a case filed on 22 August this year to suspend all future contact between the mother and daughter unless, as the father put it in his submissions, he could be assured the child will not be subjected to undue pressure by her mother.  He indicated he agreed to supervised time.  The mother rejected the suggestion that there was any basis for supervision but if it was found to be necessary, she would attend any time to be spent with her daughter, supervised or unsupervised.  For her part the mother persists with her original application of 8 October.  She wants both children immediately returned to her full-time care with the father to have only supervised time. 

24. It is quite obvious there have been significant changes since the 2005 orders and I will allow the matters to be re-opened but I propose to limit those to the child K for reasons shortly to be given.  I do not propose to allow the child J to be subjected to the further litigation and I propose to impose certain conditions which I shall elaborate on shortly. 

25. One such condition is whether I accede to a request for the appointment of an Independent Children's Lawyer. The father seeks such an appointment.  The mother opposes.  I doubt very much whether Legal Aid Queensland would be prepared to accede to a request for the appointment of an Independent Children's Lawyer given the history of this matter, where the Independent Children's Lawyer was funded for a period of some 12 days just a little over three years ago, unless there is a substantial financial contribution forthcoming.  The mother says she is not in a financial position to assist.  As I understand the position the father holds certain properties.  I have not canvassed that aspect in view of the mother's statements. 

26. The mother's opposition to the appointment of an Independent Children's Lawyer is based on the likelihood that such an appointment would lead to a final determination in this matter being delayed.  Any conditions that I impose will, as far as possible, be directed to ensuring the non-involvement of the child in the litigation process, difficult though that may be to achieve.  I will cross that hurdle when the time comes.  I will request the appointment of an Independent Children's Lawyer and I make the strongest possible recommendation to the Legal Aid Commission of Queensland to give favourable consideration to that recommendation. 

27. The parties are not legally represented, nor are they likely to be legally represented.  The level of hostility between the parties is high.  The level of communication is extremely low.  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.  By way of example, the Court would need to have updated reports of various nature and an Independent Children's Lawyer would be able to organise the appointments and communicate with the parties in a way that the Court would be unable to do.  The Court would need to have updated subpoenae issued.  Again, the Independent Children's Lawyer is best placed to facilitate that.  The Court would ultimately be assisted by the neutral consideration of an experienced Independent Children's Lawyer. 

28. There are a number of other issues upon which I intend to make orders or rulings.  The mother seeks that this matter be dealt with as a less adversarial trial matter.  The application was initiated in October 2007.  It falls to be considered under the 2006 amendments.  As best I can I will endeavour to comply with the letter and the spirit of the less adversarial trial process but that process does not exactly lend itself to matters with a history such as this one. 

29. I had contemplated making a ruling that the parties not rely on earlier reports.  There has been a great deal of criticism in each direction of certain of those reports.  The mother opposes such a ruling.  The father is prepared to abide by any order of the Court.  He generally favoured a prospective approach that is draw a line and not rely on any of the past material.  However upon reflection the parties should be at liberty to rely on such material as they deem relevant, provided, of course, it is relevant.  It is not for the Court, at this stage, to say that there is a prohibition on an examination of past events. 

30. In her affidavit of 25 August this year at paragraph 27 the mother says:

    I am seeking urgent orders that the father be fully urgently psychiatrically assessed by a competent professional. 

31. It is my invariable practice if I am making an order for one party to be assessed then each of the parties is to attend for a psychiatric assessment.  I understand that there has been a psychiatric assessment in the past but I have not been asked to read it, nor have I read it, but I have seen it on the index to the file at some stage.  I proceed on the basis that an Independent Children's Lawyer will be appointed.  If so appointed I would request the Independent Children's Lawyer to engage an experienced psychiatrist to carry out an assessment of the parties but for the child not to be involved. 

32. The Independent Children's Lawyer is to have leave to inspect the file and to forward to such psychiatrist selected any material which may be deemed to be relevant for the purpose of fully informing the psychiatrist to allow such assessment to be carried out.  Certainly, it is not the role of a Court to be seen to be expressing a preference for individual psychiatrists but this assessment requires a psychiatrist who is highly experienced.  In my view, Dr X, Dr F, Dr G would fall into that category.  I note that the mother has nominated Dr G.  I do not know whether she knows him personally.  I leave it to the discretion of the Independent Children's Lawyer.

33. I would request the Independent Children's Lawyer to do all in his or her power to expedite a hearing of this matter.  It concerns me that matters run serially, in other words one report is obtained and examined and then a further report is commissioned.  As far as possible I would like this matter to be moving forward on various fronts. 

34. I would request the Independent Children's Lawyer to do all in his or her power to ensure that the psychiatric assessment occurs early in the litigation process. 

35. I would request the Independent Children's Lawyer to use his or her best endeavours to ensure the child K is involved as little as possible in this litigation process. 

36. I will direct that a transcript be made of today's proceedings, which will include the evidence of Mr H, who is the regional coordinator of the Court's Dispute Resolution Service and his evidence will be available setting out the result of his interviews with the two children. 

37. In her material, the mother requests that this matter proceed on an inquisitorial basis.  I propose to deal with this matter as I deal with most matters but, at an appropriate time, I will be making directions as to the particular issues the parties can focus on and the affidavits are to be limited to those issues.  In particular, I am concerned about the fact that one half of volume two of the mother's recently filed affidavit material and all of volume three relate to allegations dating back to 2001 and they did not appear to feature in Buckley J's 75 page reasons for judgment. 

38. The mother says it is responsive to the father's affidavit of 23 July.  I will have to go back and traverse that but I propose to make an order:

    ORDER DELIVERED

39. That is a common practice under the less adversarial trial process.  I am not going to stand by and have the flood of paperwork that has come through in the last six months from both sides.  At an appropriate time I will issue directions permitting the parties to file affidavit evidence for use at trial.  The volume of material filed to date is bordering on the absurd. 

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 Mr H.  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.  Mr H 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.

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

Associate: 

Date:  29 September 2008