Suess and Jackson and Anor

[2008] FamCA 1109

FAMILY COURT OF AUSTRALIA

SUESS & JACKSON AND ANOR [2008] FamCA 1109

FAMILY LAW – CHILDREN – with whom the child lives

Family Law Act 1975 (Cth)

APPLICANT MATERNAL

GRANDMOTHER:

Mrs T Suess

RESPONDENT FATHER: Mr Jackson

RESPONDENT MOTHER: Ms A Suess

INDEPENDENT CHILDREN’S LAWYER: Mr Grant

FILE NUMBER: BRF 217 of 2006

DATE DELIVERED: 1 December 2008

PLACE DELIVERED: Brisbane

JUDGMENT OF: MURPHY J

HEARING DATE: 1 December 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT

MATERNAL GRANDMOTHER:

Ms Martin

Smith & Associates

COUNSEL FOR THE 

RESPONDENT FATHER:

Mr Supranowicz

RESPONDENT MOTHER: Appeared on her own behalf

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Mr Grant

Grant & Associates

Orders

IT IS ORDERED THAT

1. The children V, born … May 2004, and B, born … November 2005, (“the children”) live with their father.

2. The children shall spend time with their mother at all such reasonable times as might be agreed between the parties.

3. The father shall have sole parental responsibility with respect to the children.

UPON NOTING THAT consequent to completion of the hearing in this matter, at which the applicant Grandmother was not present, and the making of orders thereat, the applicant Grandmother notified the Independent Children's Lawyer who then notified the Associate to Justice Murphy that she wished to maintain her application.

IT IS FURTHER ORDERED IN CHAMBERS THAT

1. The Maternal Grandmother’s Application for Final Orders be listed before Justice Murphy for mention at 2.15pm on 6 February 2009 in the Brisbane Registry of the Family Court of Australia.

2. The applicant Maternal Grandmother shall file in the Court and serve upon each other party by not later than 4.00pm on 23 January 2009, an affidavit deposing to:

   (a)       The matters upon which she relies in seeking the orders she pursues;

   (b)The occasions on which she had contact with her solicitors (specifying the date and nature of contact in each case) in the period between 21 April 2008 when orders were made by this Court and the commencement of the hearing on 1 December 2008; and

   (c)       The reason or reasons for her not being present at that hearing.

3. The applicant Maternal Grandmother shall by not later than 4.00pm on 23 January 2009, serve by forwarding by registered post, a sealed copy of the said affidavit on the solicitors representing her at the hearing on 1 December 2008, Smith and Associates.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Suess & Jackson & Suess is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF217 of 2006

MRS T SUESS

Applicant Maternal Grandmother

And

MR JACKSON

Respondent Father

And

MS A SUESS

Respondent Mother

EX TEMPORE

REASONS FOR JUDGMENT

1. In this matter, I made a number of orders some time ago included in which was an order made pursuant to s 65L of the Act. That order directed Mr F, a family consultant attached to the Family Court Registry at Brisbane, to conduct the process of supervision envisaged by that section, and to report to the Court.

2. This matter has a very long and complex history and involves the inter-relationship of three sets of parents and their children.  The maternal grandmother, Mrs K Suess, was an original applicant in these proceedings.  Her daughter, Ms A Suess, is the mother of five children to three different fathers. 

3. The first, N, was born in September 2000 to Mr C, who is the respondent to separate proceedings consolidated with these.  Fortunately, for N and for N’s future, Mr C and the mother have been mature enough, intelligent enough and selfless enough to be able to arrive at arrangements by agreement between the two of them. 

4. Those arrangements provide that N is to live with his father and spend time with his mother as the mother and Mr C are able to agree. 

5. I am told by Mr Grant, who appears as the independent children's lawyer in both matters, confirmed by each of Mr C and the mother, that those arrangements are working well. 

6. That being the case orders are made today by me by consent, by way of final order, placing N in his father's day to day care and formalising the consent arrangements reached between Mr C and the mother with respect to time between N and his mother as might be agreed.

7. Ms A Suess is also the mother of two children to the respondent, Mr Jackson: V, born in May 2004, who is now 4; and B, born in November 2005, who is now 3.

8. The mother is currently in a relationship with Mr R, who is not a party to the proceedings.  They have two children, a daughter, born in November 2006, who is just 2; and a younger daughter, born in October 2007 and who is a tiny baby.

9. As I indicated, this matter has a sad history; sad from the point of view of the children who are the subject of the ongoing dispute.

10. The sadness of this case for these children is, perhaps, best summarised by Mr F in the report prepared by him dated 27 November 2008 consequent upon the order made by me pursuant to s 65L of the Act.  At par 89 of that report Mr F says this:

    “In this matter the intervention under section 65L has done nothing to advance parental communication and cooperation.  They rigidly mistrust each other.  There will never, in my view, be a mechanism in which these parents could safely communicate and effectively discuss issues of concern for their children.  If both parents are left to make joint decisions for these children, decisions will never get made.”

11. The profound sadness of that opinion (which, I should emphasise I share) for these children, can hardly be overstated.  The fact that these adults haven’t taken it upon themselves to engage in a dispute between the two of them which is both juvenile and pathetic, to the detriment of their children, will have long lasting ramifications for these children, is a matter of considerable regret and sadness to this Court and should be to them.

12. If evidence was needed of that, one need go no further than par 86 of Mr F’s report where he says this:

    “From the adults' comments, it is reasonable to conclude, in my view, that the children, and particularly [V], are now unstable, agitated, swearing and hostile in both homes.”

    I interpose here so as to emphasise the fact V is not yet 5 years of age.

    “The most obvious reason for this is that they as very young children are transferring between two completely different, mutually exclusive environments, in which the overt negativity and mistrust would at least be obvious to [V].  [B] is likely to be most receptive to his sister.  On the history of this matter he is probably more attached to her than he is to anyone else.” (My emphasis).

13. I want to emphasise the profound tragedy of the last sentence of that paragraph.  Mr F, who is a trained and experienced family consultant who, as his daily work, sees children who are the subject of significant conflict between their parents, has been prepared to conclude that a 3 year old child is most likely more attached to his 4 and a-half year old sister than to any adult involved in these proceedings. 

14. If that does not say all there is to say about the tragic likely future for these children, little else will.

15. That report refers to a number of matters assessed by Mr F during the course of the process envisaged by the orders, not least of which is a number of statements made by V during the course of the supervision. 

16. In particular, at pars 58 and following of his report, Mr F reports on a number of things said by V in circumstances where, although she is but 4 and a-half years old, she is clearly involved, centrally, in the pathetic conflict between her parents.  Again, that this augers badly for her future, need hardly be said. 

17. That these parents are unable to put aside their conflict in circumstances where the responsibility of parenthood (as s 60CC recognises) is an important factor in their future, again augers badly for this young child's future.

18. Against this sad and tragic background the mother presents today, acting on her own behalf, indicating that she wants to participate no further in these proceedings.  She says to me from the Bar Table:

    “No matter what I do the children will continue to be subjected to psychological harm.”

19. She went on to say:

    “Why not give the children to [S] (a reference to Mr Jackson’s sister) who is doing the caring in any event.”

20. The mother indicated that her mother, who is also a party to these proceedings, is "fed up" and "sick of it".  The maternal grandmother is represented by a solicitor at today's hearing and has been previously represented throughout the course of the proceedings. 

21. Ms Martin, who appears on her behalf today, informs the Court that there have been many attempts to contact her client over a period of some weeks.  On the last occasion, which occurred in late October, there was a brief telephone conversation between Ms Martin and the maternal grandmother at which time the grandmother indicated that she would call back, but never did. 

22. Although Ms Martin was careful to point out that she did not have instructions to this effect, she did indicate in terms of her overriding duty to the best interests of the children that the indications from her client were that the position of the maternal grandmother was the same, in effect, as the mother's position. 

23. The comments by the mother today from the Bar Table would appear to confirm that observation.

24. Mr Grant, who appears as the Independent Children's Lawyer indicated that, prior to the mother joining the proceedings, she had indicated to him that she could not see how the continued arrangements, and, more specifically, the continuation of conflict in this Court, would benefit the children.  That seems to me to be, with respect, an entirely accurate observation.  But, nevertheless, in terms of the outcome initiated by the mother herself, a conclusion attended with significant sadness both for her and the children. 

25. I should interpose here that the report of Mr F indicates warmth and affection in the attachment between V and her mother.   What the report indicates is not any rejection of the mother by V, but, rather, understandably (but wisely for a 4 and a-half year old) a rejection of the conflict between her parents.

26. Nevertheless, the mother has clearly taken the view that she no longer wishes to subject herself and the children to these proceedings.  In those circumstances, Mr Grant suggests that an order should be made to the affect that V and B live with their father and that they spend time with their mother as might be agreed between the parties. 

27. As Mr Grant put it, that, as it were, "keeps the door open".  Mr Grant makes that submission, I gather, because, as seems patently clear from the material, although the terms of the order provide that the parties shall by agreement provide time for the mother to see V and B, realistically the prospects of these two people having sufficient maturity to engage in discussions to facilitate that occurring, appears to be very, very slim. 

28. The practical consequences of the order are highly likely to be that the parties will further polarise their positions and that, at least in the short and medium term, V and B are unlikely to see their mother and enjoy the benefits of the relationship which not only the legislation presumes would flow from that, but which clearly is evident from the interrelationship observed by Mr F during the report process.

29. I am profoundly suspicious that the father (and his mother and sister) will never make any sincere attempt to facilitate time between V and B and the mother.  If this does not occur it seems to me highly likely that V and B will suffer long-term harm consequences.  V and B deserve a relationship with their mother and deserve to know who their mother is.

30. At one point in the proceedings I asked Mr Supranowicz, who appears as counsel for the father, to obtain instructions as to whether his client would be grown up enough to provide details of education, health issues and the like to the mother. 

31. During the process of Mr Supranowicz obtaining instructions to that affect, the mother indicated that she sought no such order.  Whilst said at a time when the mother was clearly, and understandably, upset, it nevertheless consistent with the attitude earlier expressed by the mother about, in effect, being fed up with the whole process. 

32. A parent does not need a Court order to carry out parenting in a way which is responsible, intelligent, adult, and child-focused.  It seems it will be down to the father and, perhaps, his mother to make their own decisions about whether these children should learn of their mother and have the experience of being co-parented by her. 

33. On the current attitude of the mother, should they choose not to do that, then little will flow by way of ramifications in terms of Court orders.  However, it should not be thought by them, or anyone else, that in those circumstances that there will not be detriment to these children. It also needs to be understood by them and everyone else that children have a right to know, love and be cared for by both their parents, not just one of them.

34. With those reasons and in those circumstances, I make orders as follows - - -

    ORDERS DELIVERED

35. It will be evident from my comments and the orders just made that the presumption of equal, shared, parental responsibility is considered by me to have been rebutted in this case.

36. At par 89 of Mr F’s report, earlier quoted, Mr F points out his opinion that not only has the s 65L process ordered by me “done nothing to advance parental communication, cooperation” but rather the “rigid mistrust” that the parents have for each other will, in all likelihood, continue into the future.

37. As indicated, Mr F was of the view that:

    “There will never, in my view, be a mechanism in which these parents could safely communicate and effectively discuss issues of concern for their children.  If both parents are left to make decisions for these children, decisions will never get made.”  (My emphasis in each case).

38. In summarising the position, Mr F was of the view expressed at par 95 of his report:

    “I am of the view based on my observations of the operation of the existing orders that on the basis of the issues of conflict, the children should live predominantly with one parent and that parent should be solely responsible for decisions about them.”

39. I have in earlier cases indicated that in my view, by reference to s 60CC(3)(m) of the Act, the fundamental human rights of people to participate in a meaningful way in the lives of the children should be interfered with only on a substantive evidentiary basis.  Clearly enough any such discretion exercised by the Court ought be exercised in the best interests of children.

40. Tragically for these children, it seems to me, that there is very little doubt that these parents would be able to cooperate in any way, shape or form, let alone join together and make the decisions with respect to these children that an order for shared parental responsibility necessarily implies by reasons of the provisions of s 65DAC of the Act.

41. Accordingly, there seems to me to be no other conclusion other than that sole parental responsibility, which I take to be, by reference to the definition of "parental responsibility" in the legislation, an order which effectively excludes the other parent from all of the matters contained within the definition of "parental responsibility", should be made in this case.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  18 December 2008

NOTATION:

On the afternoon of 1 December 2008, subsequent to delivering these Reasons in Court, my Associate was informed by telephone by the Independent Children's Lawyer that he had been advised by the applicant maternal grandmother that she was unable to attend court today due to illness. She had indicated to him that she wished to continue her application for spending time with her grandchildren. The maternal grandmother was represented by solicitors at the hearing. I reiterate pars 20 to 23 of these Reasons. However, I have today made orders in chambers facilitating the grandmother (and other parties) being heard in respect of the intended pursuit of her Application, despite the hearing having been concluded. I particularly bear in mind the grandmother’s unrepresented status. I emphasise however, that the hearing on 6 February 2009, when I have listed the “application” is for the purposes of determining whether the court should proceed to hear that application in light of the matters referred to at par 20 to 23 of these Reasons.

I will, further, direct that the grandmother file an affidavit and to serve, not only all other parties, but also her solicitors, Smith & Associates. Consequently, chambers orders were made to adjourn the matter for further hearing of her Application for Final Orders, and to cause the orders made today in this matter to become interim until further order.