SS and AH (No. 2)

FAMILY COURT OF AUSTRALIA

SS & AH (NO. 2)

[2008] FamCA 821

FAMILY LAW – CHILDREN – With whom a child lives and spends time - Orders

APPLICANT:

RESPONDENT:

FILE NUMBER:

BRF

1070

1999

DATE DELIVERED:

30 September 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

29 - 30 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Applicant Father appeared in person

COUNSEL FOR THE RESPONDENT:

Respondent Mother appeared in person

Orders

IT IS ORDERED UNTIL FURTHER ORDER:

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 in October 1993 and K born in September 1997.
The Father is not to change the schooling of the children without the written consent of the Mother or further order of the Court.
Orders 3, 4, 5, 6, 7 9 and 14 of the Orders of the Honourable Justice Buckley dated 10 June 2005 are suspended.
The children are at liberty to communicate with the Mother by telephone, mail or email at any time.
The Mother is not to telephone or attempt to telephone either child.
The Mother is not to have physical contact or attempt to have physical contact with either child.
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.
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.
The Mother may send cards to the children on special occasions such as Christmas, Easter or the children’s birthdays.

IT IS ORDERED:

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.
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.
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.

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)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF1070 of 1999

Applicant Mother

And

Respondent Father

REASONS FOR JUDGMENT

On yesterday's date I made directions relating to the future conduct of this matter. On today's date I have to consider what changes, if any, should be to orders made on 10 June 2005. The mother filed an application in October last year seeking various orders in relation to the children namely, that they live with her and only have supervised time with the father. On 23 July I heard contravention applications she had subsequently brought and I also heard arguments for and against the re-opening of the issues relating to the children.
Events since then have overtaken the arguments put forward at that time but I had, as I indicated yesterday, already reached the view that the children's issues needed to be reconsidered.
On 22 August this year, the father filed an application in form 2 seeking orders:
a)that the orders of 10 June 2005, on an interim basis, be suspended so far as paragraphs 3, 4, 5, 6, 7, 9 and 14 are concerned.
b)to include the provision of those orders that the mother be prohibited from attending the children's school and any of the children's extra curricular activities.
c)for the Court to appoint an independent children's lawyer to represent the children.
He further sought an urgent injunction to prevent the mother:
a)speaking to any third party regarding previous proceedings between her and myself in the Family Court with the exception of her legal representatives or unless required to do so, by a Court of competent jurisdiction; or
b)disseminating or being a party to the dissemination of any information via any means in relation to these or previous proceedings without having first been granted permission by the Family Court in writing to do so.
Not a great deal of the submissions or the evidence was directed to those last orders.
Accompanying the filing of an application, the father filed an affidavit on the same date. It was sworn on 8 August. In paragraphs 36 to 42, he effectively sets out the basis of the application for the suspension of time between the mother and daughter.
36.I rely upon my affidavit filed 23 July 2008 as evidence of the efforts of the mother to manipulate the children, the Family Court system and events to alienate me from the children over the last decade resulting in significant distress to the children.
He purports then to annex his own affidavit of 23 July. I pause to note that the parties really do not need to annex, at any time, Court documents already on the Court file.
Paragraph 37:
The mother (knowingly or unknowingly) is capable of putting enormous psychological pressure upon [K] evidenced by the mother's diary notes in the lead up to the proceedings before Buckley J in 2005.
Annexed to my affidavit referred to in paragraph 37 above and marked "Diary notes is a true and correct copy of those diary notes".
38.I've had numerous concerns regarding [K] in the mother's care for a significant period of time and have been monitoring [K].
39.I believe [K] has been coming under mounting psychological pressure from the mother in particular since the lodgement of the mother's recent applications for contravention and interim and final orders.
40.I have been mindful in my written and oral submissions to date not to mention anything that would give the mother issue to take up with [K], however, suffice to say [K] has now said with conviction, that she does not want to visit the mother.
41.It's demonstrable that in all previous proceedings, significant pressure has been placed upon the children in the lead up to final hearings by the mother as exemplified in her diary notes producing behaviour in the children, [K] in particular, that is in my view extremely alarming.
42.I submit the pressure upon [K] will continue to increase as these current applications progress.
The mother's response to this application to suspend time was filed she says on 11 September 2008 - the document shows 10 September but the inconsistency is not relevant. In that document in paragraph 4 under the heading:
State briefly any other orders that you are seeking
there follows:
Please see my affidavit for detailed orders. In brief:
1. Interim residence of [J] and [K];
2.Interim orders for sole responsibility for all matters concerning the children's health education et cetera;
3.Supervised contact with the father every other Sunday four hours at a contact centre;
4.Interim orders that the father be prevented from attending the children's school or extra curricular activities;
And then:
If the Court will not make these orders, I seek orders as per paragraph 55 of affidavit.
The mother's affidavit was filed on the same date, be it 10 September or 11 September. I note that at page 15 of the affidavit, the mother has paragraph 85 which is, in turn, followed by paragraph 55. I am interpreting that as being a typographical error and that it should read paragraph 86 but it's a paragraph to which she adverts in the response document. I propose to read into the record paragraphs 85 and 86:
85. I am seeking/continue to seek the following interim orders:
(a) interim orders for residence of [J] and [K].
(b)interim orders for sole responsibility for all matters concerning my children including, but not limited to, education and health;
(c)interim orders for supervised contact with the father four hours every other Sunday at a contact centre, if needed;
(d)interim orders that the father be prohibited from attending the children's school or extra curricular activities until final orders are handed down.
That is a repeat of what is in the Response but the paragraph that follows is in these terms:
In the event that the Court will not make these orders, I seek the following:
(a)The father be prohibited from attending the school at all under any circumstances on the days that [J] and [K] are supposed to have contact with me as per the contact calendar drawn up by [Mr C] for 2008 and I request that he draws up for 2009, that said calendar be provided by the Court to the school.
(b)That [the school] only allow the children to be released to the parent marked as responsible on said contact calendar for collection; and
(c)An order that the father deliver both children to school on time. The father in his “Response to a Contravention” affidavit of 22 July at paragraph 39 alleges that Judge Barry agrees with him that he does not have to have [J] at school "at any particular time" and that there are "no orders to that effect".
(d)I continue to firmly believe that the father fails to ensure that [J] and [K] are delivered by him to school on time, if at all, and that he keeps them at home to prevent contact or because he cannot be bothered to take them to school. I therefore seek an order that if the father does not take either [J] or [K] to school, that he provide a valid Medical Certificate to the mother and the school within five working days of same, via registered post. I request that the Court advise the school of this requirement in writing. The father does not value education. In the hearing before Judge Buckley he told the Court that he had never once read a book to [J] who was almost 12 at the time.
(e)That an urgent family report be prepared by [Mr C], that [J] be urgently and independently educationally assessed with [the school] being ordered to provide all necessary information. I do not believe that this matter can be properly heard in [J’s] best interests without there being a full, proper and professionally accurate assessment of [J’s] intellectual and other difficulties and a full discussion of and evidence detailing exactly how his special and specific needs are best served. [K] also needs to be heard, away from the venomous, destructive and narcissistic control and influence of the father.
(f)That an order be issued to [the school] to provide copies of all tests and assessments including but not limited to the NAPLAN/QSA tests to the parents on written request, within 10 days, and all other information pertaining to the children's education.
(g)That this matter be heard in an inquisitorial manner in order to best serve the children.
(h)That this matter be urgently finally heard as I've been requesting since early October 2007, in the best interests of my children as required.
The operative orders are those made on 10 June 2005. They were made after a 12 day hearing. The first order was that the children live with their father. Paragraph 2 was that each party have sole responsibility for the day-to-day care, welfare and development of the children during any period that they are living with them. Paragraph 3 was an order for joint responsibility for decisions concerning the long term care, welfare and development of the children including, but not limited to the education of the children. Paragraph 4(a) provided the mother was to have contact with the children at all times as may be agreed between the parties but to include as follows:
Each alternate weekend from after school Thursday until the commencement of school Monday with such contact to commence on Thursday, 14 July 2005.
Effectively, that meant in a 14 night cycle, the mother had the children for four nights, the father for 10 nights - that is during school term.
4(b)During Queensland gazetted school holiday periods the weekend contact provided for in paragraph 4(a) be suspended. The mother have contact for one half of such school holiday period and alternating between the second half and the first half.
These followed specific orders for Christmas Day, the children's birthdays and for Mother's Day and Father's Day (paragraphs 4 and 5). Paragraph 6 was in the following terms:
The father was to provide to the mother in a timely manner, copies of all notices received from the children's school and details of all functions, parent and teacher nights and other activities to which the parents are invited.
The father provide to the mother in a timely manner after they are received, copies of all school reports, any other reports on school progress and behavioural issues in relation to the children.
The orders further provided:
The Mother and Father each be restrained from:
(a)denigrating the other party or members of the parties' family, in the presence of or within the hearing of the children; and
(b)making audio or video recordings of the children for use as evidence, directly or indirectly for any future Court proceedings.
The parties were to have a joint responsibility for decisions concerning medical treatment, dental treatment speech therapy, physiotherapy and any specialist treatment and any alternative medical treatment for the children.
There was provision for ensuring the children attend confidential counselling with Mr U and paragraph 14 provided for a communication book to be maintained.
The orders, as I have noted, that the father wants suspended are paragraphs 3, 4, 5, 6, 7, 9 and 14. In these proceedings neither party is legally represented. On yesterday's date I made directions recommending the appointment of an independent children's lawyer for reasons that I gave at the time and an order that the independent children's lawyer arrange a psychiatric assessment of the parties but that psychiatric assessment is not to include the children.
I also requested the two children be brought to Court to be interviewed by the Regional Coordinator of the Courts Dispute Resolution Service, Mr H, to ascertain the children's wishes in view of the conflict in the accounts which were presented to me in the affidavit evidence. Fortunately, the children were at home on school holidays at the time and were able to be brought in.
J has not seen his mother for about two and a quarter years, on my calculations. He apparently had an altercation with her at the time contact ceased. At the present time, the father says K is insistent she does not want to see her mother. The mother disputes this. The view that I formed was that one way of ascertaining the views of the children, K in particular, would be to have them interviewed. Notwithstanding the mother’s assertions to the contrary there is nothing unusual whatsoever about this process. It is commonly done.
The mother made submissions that the Court system is corrupt. I do not accept that. Without having asked any questions of Mr H, directed to his qualifications she challenged his qualifications in submissions before me and asserted that he was not qualified to give the evidence that he gave as to the conversations he had with the children and the observations that he made. I accept that Mr H has been interviewing children for many years. He is well qualified or he would never have been appointed to the position he holds. He has been doing his job for 25 years. I reject the suggestion that he is not qualified to give the evidence that he gave.
Mr H's evidence was he interviewed K for 50 minutes. He described her as talkative, expressive and intelligent. He says she recounted that she experienced arguments with her mother and she felt tension as a result. K recounted that about five weeks ago, there was a large argument which made her quite upset. This matter was before the Court on 23 July at which time I dealt with various contraventions brought by the mother and an application by the mother to re-open the children's issues. The 23rd July was a Wednesday. The mother's time with K commenced the next day, Thursday, 24 July and, as I understand it, commenced as usual after school on that day and concluded on the following Monday, 28 July. Since then, K has spent no further time with her mother.
The mother was next due to have K in her care on Thursday, 7 August. It is common ground the mother has not seen K since that time a period of just under eight weeks. The mother has filed, to my knowledge, two contravention applications relating to the two fortnights of missed time during the month of August.
During the interview process, K told Mr H 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.
At that point in time during his evidence, Mr H 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.
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. Mr H 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.
Mr H 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.
In relation to the child, J, the total interview time was for a period of some 15 minutes. He observed J to be of a very straightforward nature. He spoke openly. He volunteered that he contacts his mother from time to time by phone and has a chat with her. This takes place every couple of months. He expressed the view, he was not sure of his relationship with his mother. He said they only talk superficially. His preference was for this position to be left open. He did not want orders in place. It appears he wants to be at liberty to contact his mother at times and in circumstances of his choosing.

J sent an email letter on 11 March 2008 to his mother. The mother disputes that J is the author but, for present purposes, I am satisfied J did write that email document. The second paragraph of that letter is both sad and touching. It reads:
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.
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 Mr H 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.
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 Mr H 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.
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 Mr H. She is concerned that her mother will be angry with her for behaving in this fashion.
The mother produced on today's date, a series of email communications which passed between K and herself since 7 August. They were marked exhibit 1. There's no sworn evidence in relation to that tender. The tender was not objected to by the father. I am unable to say categorically if that was all the email correspondence that was disclosed but suffice it to say it shows that the child is able to correspond with the mother in a reasonable fashion via email. That does not appear to be in doubt.
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. I also note in passing, that the mother did not appeal the orders of 10 June 2005. J ceased attending on weekends as I understand the evidence in about June of 2006 because the mother did not wish him to come. They had had a serious altercation. Whether J elected not to come or the mother did not wish him to come, whatever reason for his non-attendance, it was on my calculations, about two and a quarter years ago. The mother has not filed any contravention proceedings in relation to J's non attendance. She seemed to be accepting of it.
I turn to consider the law to be applied. The factors that I have to take into account are set out in S 60CC of the legislation. I will be referring to those factors in some detail shortly. There have been a number of leading cases over the years setting out principles to be applied when determining interim care arrangements. The first of those leading cases was Cilento. Cilento was authority for the principle that if a child or children should be in a given situation then unless the child is at some serious physical or moral risk of harm, the Court should not lightly interfere with the then existing arrangements. Stability was an important factor to take into account.
That decision was refined subsequently in the decision of Cowling. The changes in approach which are reflected in the case law in turn, mirror legislative changes which have been introduced over the years. The current landmark case is known as Goode v Goode a 2006 decision by the Full Court. At par 82, the Court succinctly summarises the process a judge must engage in.
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);
(e)Deciding whether the presumption in section 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)If the presumption does apply, deciding whether it is rebutted because application of it would not be in the child's best interest;
(g)If the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child's best interests as a result of consideration of one or more of the matters in section 66CC or impractical;
(h)If equal time is found not to be in the child's best interests, considering making an order that the child spend substantial and significant time as defined in section 65DAA(3) with the parents unless contrary to the child's best wishes as a result of the consideration of one or more of the matters in section 60CC or impracticable;
(i)If neither equal time nor substantial and significant time is considered to be in the best interests of the child then making such orders in the discretion of the Court that are in the best interests of the child as a result of consideration of one or more of the matters in section 60CC;
(j)If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child as a result of consideration of one or more of the matters in section 60CC and K. Even then the Court may need to consider equal time or substantial and significant time especially if one of the parties has sought it or if neither has sought it, if the Court considers after affording procedural fairness to the parties, it to be in the best interests of the child.
So far as identifying the competing proposals of the parties, I believe that I have adequately covered that at the introduction of my reasons when I set out the specific orders each party now seeks. In effect, the mother says the children should be with her on an interim basis with the father to have four hours supervised time. The father says the children should both be with him and the mother's time should now be supervised, at least this was his position before Mr H's evidence. After Mr H's evidence he moved to a position of saying he would leave it up to the Court.
The mother's material consisted of written submissions, her original application for residence of October last year and she relied on affidavits filed respectively on 26 August this year, 11 September, the response document of 11 September and a further affidavit in three volumes of 24 September. The father's material consisted of a two volume affidavit filed on 23 July and the application and affidavit of 22 August to which I have made reference.
In relation to the requirement to identify the issues in dispute, I asked the parties to identify the issues in dispute for the current hearing. For the mother, she wished to press ahead with the contravention applications which have been filed. I indicated that my view was that they were not a priority item, that contraventions were secondary to the issue of what changes, if any, should be made to the 2005 orders. Each party seeks significant changes including the important issue of sole responsibility. I had previously informed the mother, I believe it was at the July hearing, but I repeated it in the course of this hearing 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.
In the alternative, the mother seeks reinstatement of time with J. She submitted that there was no basis for a requirement of supervision. I note this morning the mother conceded that in light of the views expressed by the child, she was prepared to accept supervised time "if that's what it takes".
In the course of cross-examination of Mr H by the mother, he revealed the subject matter of the argument between K and her mother. K asserted that the mother referred to her as a “lying cow” and stated she did not want anything more to do with her. The child was repeatedly accused that she would lie if interviewed by a social worker. That is how I understood Mr H's account of this evidence.
The child added that the mother always said bad things about her father. She informed Mr H the arguments had been increasing in intensity over a period of time. When asked to delineate the time period, she said from grade 3 through to grade 5. Mr H commented that that would again be an indication of the child using appropriate measures - that's the way children measure time in terms of what grade they are in at school. Having detailed what K's position was, Mr H made the obvious comment that to that point in time, he had not been asked what his views were as to what were appropriate changes to the existing orders.
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.
For the father, the issues were what time K should spend with her mother. As I have indicated, he was not opposed to supervised time or some form of contact where the child could be protected such that she would not be subjected to any pressure by her mother. He was ambivalent about supervised time after hearing the evidence of Mr H. He pressed for an independent children's lawyer to be appointed and/or for the preparation of a psychologist's report.
The mother, I note on yesterday's date, opposed the appointment of an independent children's lawyer. Initially, she said she could not contribute financially but also because it may delay a final hearing of this matter. I note that there are very few agreed or uncontested facts in this matter. It is common ground, I believe, that J and K will remain at their current school. In case I am mistaken about that, I propose to put in place an order to that effect on an interim basis but I will hear the parties if there is to be any objection to an order in those terms.
I have estimated that this matter will take about four days if it goes to trial. That may need to be revised after an independent children's lawyer is appointed and has the opportunity to peruse the material. I am, at all times, proceeding on the basis that my recommendations will be accepted by the Legal Aid Office of Queensland.
I could not possibly accommodate a four day trial before March of next year. It is likely to be later with the independent children's lawyer having to familiarise himself or herself with all the material on file, issuing subpoenae, arranging preparation of a psychiatric report which I have already ordered, arranging the preparation of a family report. What I propose to do is this: I am going to adjourn this matter to a date in late November. I already have matters listed for that date so I can only give this matter a limited amount of time.
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.
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.
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.
Section 60CC(2) says:
The primary considerations are:
(a)the benefit of the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
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.
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:
ORDER DELIVERED
I will make an order as I have indicated, unless strenuous objection is received:
ORDER DELIVERED
I now return to a consideration of s 60CC. I do not need convincing that in normal circumstances it is appropriate to place great emphasis on orders which allow for both parents to have a meaningful relationship with the children. The orders the mother seeks are for the children to live with her and the father to only have four hours' supervised time a fortnight. Presumably, the reason she seeks supervision is because of the claim she makes that the father has alienated the children from her.
Apart 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 Mr H's assessment. I have looked high and low for indications and cannot see same. As I have said, the father, prior to Mr H's evidence, was for his part prepared to accept the mother have supervised time with K but having heard K's views expressed, he is concerned that if there was to be time there is evidence both from J and K, the mother has denigrated the father to them directly. I note that if that evidence proved to be correct, it is a direct breach of the orders of 10 June 2005. I suspect it comes within the section of parents are not to denigrate the other parent in the presence of the children. To do it directly to the children would come within that definition.
Mr H recommended email contact and for the mother to send cards on special occasions. This recommendation accorded with the child's wishes. 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.
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.
The next factor, paragraph 3(b) requires me to take account of the nature and relationship with the child with each of the child's parents and with other persons. At the present time, I would have to observe that the mother's relationship with both children is problematic. I accept in the past she has been a full time carer. I accept she has the interests of both children in mind in acting as she has and I make similar observations in relation to the father.
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.
3(c) - the next factor I have to consider is the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent. I can only observe that, on the evidence before me, the father has not sought to undermine the mother's position. The statements from both J and K would indicate the mother has denigrated the father to them and that denigration has persisted over a significant period of time. The mother persists with claims the father has sexually abused his daughter. My understanding is such claims have been thoroughly investigated and discounted as unsubstantiated.

I would not expect K to be excelling at school and receiving glowing school reports if she was the ongoing victim of sexual abuse. I would not expect her to be telling a neutral third party that she wants to remain exclusively in her father's care if she has been, at any time in the past, the victim of her father's abuse.
In 3(d) I have to consider the likely effect of any changes in the child's circumstances including the likely effect on the child of any separation from either of his or her parents. 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 Mr H. 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.
I expect she will 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. The main reason is because of the issue of parental responsibility but 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.
ORDER DELIVERED
I would not anticipate the father placing obstacles in the children's way if they expressed a wish to communicate with the mother. One indication of that is J seems free enough to be able to communicate with his mother from time to time. There does not seem to be any history of the father trying to prevent J making such contact.
Subparagraph (e) deals with the practical difficulty and expense of the child spending time with the other parent. That is not a relevant factor here. The parties live in the same general district. It has not been a problem in the past. It is certainly not going to be a problem in the immediate future.
I have to consider 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. I have to place on record that the mother does display certain persecutory tendencies. She has ongoing clashes with the school authorities. She appears to lack insight that she could in any way be even partly responsible for the break down in any relationship with school personnel. Earlier in the year, she proposed instituting contravention proceedings against the school principal because he was allowing teachers to consult with the father without giving her the opportunity to be involved in such discussions. For reasons I gave at the time I did not allow such proceedings to issue.
The mother is of the view that the Court system is corrupt as are a number of expert witnesses who have nothing to do with the Court other than the fact that they, on a fairly regular basis, give evidence in the Federal Magistrates Court and this Court, normally on the basis that they have been engaged by an independent children's lawyer courtesy of the Legal Aid Office. Such experts include Mr U and Mr A. The mother is vitriolic about Mr A. These are two psychologists who regularly give evidence.
I am just going to quote as an example, literally chosen at random, paragraphs 12 and 13 of the mother's affidavit of 10 - 11 September. Variations of the passages I am quoting are to be found in other parts in the mother's affidavit material. Paragraph 12 reads:
Before and since the change in residence to the father's home in June 2005, the father has abused his son by amongst other things, refusing to acknowledge, accept, respect and monitor his son's ADHD, significant intellectual disability, possible visual difficulty, auditory processing difficulties, memory retention difficulties, organisational problems and delivering him to school on time, if at all. The father unilaterally removed [J] from the care of Dr [C] and unilaterally took [J] to see Dr [T]. Dr [T] advised that [J] be regularly monitored by her and that the father bring [J] to see her regularly. The father has failed to do this. Refer annexures 3 and 4. In my firm opinion, the father, the Court, Mr [U] and the school have sat by and watched my son's dissent into academic and personal chaos and destruction. The father was provided by me with copies of all reports regarding [J] as was the school.
Paragraph 13:
The father has allowed his son's academic achievement levels to reach the bottom of his year and possibly the bottom of the country whilst in his care during the past three and a quarter years that [J] has been in his residential care. For almost two years, the father has successfully manoeuvred and manipulated to have [J] in his sole care. [J's] reports, assessments and both my children's school, attendance records during that period, speak for themselves. See annexure 2.
As I read part of the mother's claims, she is of the view that the school, somehow fakes its results so that J's actual level is three years lower than his chronological age. I have read J's school reports. Some subjects are below average but certainly not to the extent as described endlessly by the mother. I note that J has been the form captain. He is in the school cricket and football teams. Any objective assessment of the mother's voluminous affidavit material would indicate she is consistently disparaging of J's ability.
I am not suggesting the father has made the mother’s material available to J but I have 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. Having been exposed to his parents' ongoing conflict for nine years of his almost 15 years to date, it would not be surprising if he was not performing at an optimal level in his academic studies.
I usually deliver a homily to litigants urging them to settle. I propose to deliver, in very brief terms, such a homily but I could say that I have never been more pessimistic in my life about the success of my words having any positive influence on the parties, however, here goes.
This Court does not seek for parties to litigate. It is our dedicated goal to endeavour to have people settle their differences. There are some perceptions in some quarters that we as a Court go around door knocking encouraging people to separate and then litigate endlessly. Nothing, in my experience, could be further from the truth. As a Judge I am only too well aware of the dreadful impact it has on children to have their parents separated but that position is exacerbated ten fold if the parents become locked in lengthy hostile litigation.
There have been numerous studies in every major western country for the last 40 years, longitudinal studies which show that children from separated families have less self esteem, they will have difficulty forming and maintaining relationships in later life. They will have a greater propensity to drop out altogether, to develop addictive behaviours to alcohol or drugs. It is so sad to be an objective onlooker to see bright talented youth of the nation being subjected to this sort of treatment by their parents.
The same studies reveal where the children can move freely between the households, where they are not subjected to denigration, where they are not interrogated or cross-examined about what is going on in the other household, where the children are made to feel empowered, in those circumstances, the prospect for damage to the children's personalities is minimised. The price these children will pay is the loss of their very childhood and it rests squarely with the parents and it is very sad.
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.
ORDERS DELIVERED
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.
At this stage, I make an order that:
ORDER DELIVERED
So if there should be a bolt of lightning or some enormous wind shift in the pattern of conduct to date, the parties do not have to come back to Court, they can simply agree between themselves as to what should take place. No doubt that would involve the integrity of the children, the dignity of the children, the empowerment of the children that they be consulted and be in agreement with whatever proposals are put in place.
ORDER DELIVERED
RECORDED : NOT TRANSCRIBED
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.
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.
RECORDED : NOT TRANSCRIBED

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate:

Date: 30 September 2008

[2008] FamCA 821

30 September 2008

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Family Law

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Jurisdiction

Procedural Fairness

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