Swefford and Tarbell (No 2)

[2011] FamCA 1099

FAMILY COURT OF AUSTRALIA

SWEFFORD & TARBELL (NO. 2) [2011] FamCA 1099

FAMILY LAW – CHILDREN – Interim – With whom a child spends time – requirement for supervision.

APPLICANT: Ms Swefford

RESPONDENT: Mr Tarbell

INDEPENDENT CHILDREN’S LAWYER: Mr Berry

FILE NUMBER: SYC 889 of 2008

DATE DELIVERED: 18 August 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 18 August 2011

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mr D Holmes

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER Mr Berry

Orders

1. That the document entitled “Minute of Order of the Independent Children’s Lawyer” is marked “Exhibit 3”.

2. That Orders are made in the terms of paragraph 1, 2 and 3 of Exhibit 3 as set out hereunder:

   1.That the mother shall spend time with the child [D Tarbell] born … 2004 supervised at the [S] Contact Centre (“the Contact Centre”) … for not less than two hours each week or such longer periods as the parties agree in writing.

   2.That the said child have telephone communication with the mother each Monday and Wednesday at 5.00pm and such communication to be implemented by way of the mother telephoning the father on his mobile telephone, such telephone number to be provided by the father to the mother on the making of these Orders.

   3.That each party:

   a.Shall contact the Contact Centre within 7 days and arrange an appointment for assessment for suitability for supervised time;

   b.Attend any assessment as directed by the Contact Centre;

   c.Comply with all rules, requirements, requests or directions of the staff of the Contact Centre;

   d.In the first instance the mother will be responsible for the costs of supervision.

3. That within 14 days the mother file and serve any amended Application in a Case setting out all interim orders sought by her including the orders already sought by her in any previously filed Application in a Case and including any application by her for appointment of a single expert.

4. That within 1 month of today the mother file and serve any supporting affidavits together with a consolidated affidavit by her in support of the amended application setting out all her evidence in relation to the orders sought.

5. That within 1 month thereafter the father file and serve any amended response to that application and an affidavit or affidavits in support of that response.

6. That unless the Court otherwise orders the proceedings be fixed for interim hearing in relation to all interim issue before Justice Loughnan at 10am on 8 December 2011.

7. That, pending further order of the Court, the mother and father are each restrained from denigrating the other to or in the presence or hearing of the child and from making derogatory remarks about each other and the members of each other’s family to or in the presence of the child.

8. That the parties shall note the obligations created by the Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swefford & Tarbell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 889 of 2008

Ms Swefford

Applicant

And

Mr Tarbell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, D, born in 2004.  He will soon be seven years of age.  The father is about 57 years of age, and the mother about 48.  The hearing has been run on the basis that I have read the documents the parties asked me to read about a very narrow issue.  There is no general background information available to me except a history provided by Dr W.  I do not have the parties’ background material. 

2. I think the parties entered into a relationship in 2003, were married in August of 2004 and separated in December of 2007.  The father started proceedings in this court in February 2008.  Orders were made on 28 February 2008 for the father to have supervised time with the child.  The matter was listed on a later date for a hearing on interim issues.  The mother removed the child from Australia in April 2008. 

3. The child was recovered in the Netherlands at the end of 2010.  The mother was arrested in September, and arrangements were made in the Netherlands for the child to live in the care of the Netherlands authorities.  Later the child came to the father’s care and they came back to Australia.  Meanwhile, the mother was incarcerated from the date of her arrest, effectively, until 3 June 2011 with a transmission to Australia in the meantime.  She might have been out of custody for a short time at the end of November or early December 2010. 

4. The substantive proceedings remain on foot here.  The matter came before the trial judge this morning, and the trial judge was asked to disqualify himself.  I understand that he reserved judgment on that issue and the matter is coming back before him later this month.  An interim parenting application was also listed before his Honour, and I was asked to take that matter.  Presumably because the application for disqualification had not been determined.

5. When the matter came before me, I ascertained from the parties what was being pressed.  The mother has filed a number of applications.  She told me that she sought orders for unsupervised time in terms of her application of 25 July 2011 as follows:

   Pending further order, the mother has the following communication and time with [the child]:  each Saturday and Sunday for a period of three hours at her granny flat and local playground, and telephone communication to occur each Monday and Wednesday at 5 pm.

6. The granny flat is a part of the residence of her brother and his wife.  There is also an application, albeit not pressed today, for the child to reside with the mother’s brother and his wife.

7. The second of the mother’s issues was an order in terms of paragraph 3 of her application filed 29 June 2011 to the effect that the father have supervised time on one occasion each week for a period of two hours, with that time to be supervised by the mother’s brother and/or his wife, at a time and location agreed between the father and the brother.  I tried to explain to the mother this morning that that order made no sense in isolation because the child wouldn’t be living anywhere.  I had trouble with that and asked counsel for the Independent Children’s Lawyer (“ICL”), Mr Berry to help with that process.  He said he did, and he thought that the mother understood the dilemma.  The mother has not again raised that issue in the course of her submissions today.

8. The order sought on behalf of the child is that the child spend time with the mother, supervised at the S Contact Centre, not less than two hours a week, or such longer periods as the centre may be able to accommodate.

9. The father’s application is that the mother spend time with the child at the C Contact Service.

10. I am to make orders in the best interests of a child.  The legislation sets out a tree of logic that starts with issues about parental responsibility.  There is an exclusion from that in circumstances where it’s not in the best interests of a child.  There is an exclusion from the tree of logic in relation to interim proceedings.  For reasons that would be obvious, it is not practicable to make decisions about parental responsibility today, and, therefore, the presumptions created by the legislation do not apply.

11. I am to make orders in the best interests of a child, says section 60CA.  How one does that is referred to in section 60CC of the legislation.  The relevant matters include primary considerations.  Firstly, the benefit of the child having a meaningful relationship with both parents.  In relation to that, the child is living with the father, and there is no issue there.  The range of dispute about time is not significant.  The issue ranges over whether the time is three hours every Saturday and Sunday at the mother’s home, or for two hours a week, or such longer time as the contact centre may make available. 

12. It boils down to the question of the need for supervision in relation to that issue.  I do not consider that the range of time in dispute has any bearing on the meaningfulness of the relationship between a child and a parent.  Meaningful means the relationship is significant and important. 

13. Next, there is a need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  There is no relevant allegation within the terms of the legislation in relation to those things.  Those issues are defined, and I do not think they are relevant considerations.  At least one serious mischief has been done to the child, and I will come to that later. 

14. As to the additional considerations, the child is too young to express a wish about this, and even if he had, the concerns are too great for his wish to the relevant.  As to the nature of the relationship of the child with each of the parents – there is some evidence about that.  Dr W observed a nice relationship with the father, a relaxed, comfortable, loving relationship when he saw the parties and the child in 2008.  Perhaps it was 2007, in the first report.  That was remarkable, because at the time he saw the child, the child hadn’t seen the father, I think, for two and a half months.  He noted that in the report and noted that there was an initial coolness, and then he had some trouble separating the father and the child at the end of the session.  And in terms of the mother, I believe that it is an agreed fact that she has been the primary caregiver for the child, at least Dr W thought that might be right.

15. The fact of the abduction looms large across all of these issues.  It is not possible to know whether that is a function of the nature of the relationship between the mother and the child or something isolated from that.

16. Nextly, 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.  The mother removed the child from Australia for two and a half years and ensured that the child didn’t have any time with the father at all. 

17. As the matter sits today, the father has a proposal for the mother to see the child as early as next week, or perhaps the week after, and the mother won’t agree with that proposal.

18. As to the effect of changes in the child’s circumstances.  Before me today, no one is suggesting a significant change from the current arrangements.

19. As to the practical difficulty and expense of the proposals - that really boils down to the issue of costs if supervision is needed.  The centre proposed by the father is cheaper than the one that the ICL is recommending.  The mother’s proposal would involve no cost, but for reasons that I will come to it is not practicable.

20. The C Contact Centre is $45 an hour mid-week, $60 an hour on a Saturday, $66 on a Sunday.  The S Contact Centre, I believe, is $95 an hour or $150 for two hours, so it is a bit dearer. 

21. As to the capacity of the parents to provide for the needs of the child, including emotional and intellectual needs.  This is very much an issue.  The father is somewhat untried.  His current involvement with the child is a consequence of the abduction, as most other things have been.

22. I think there was an application before the court in February of 2008 that the child live with the father, but the court didn’t have the opportunity to make a ruling on that because of the abduction.  Then on 7 May 2008, as the mother says, the court made an order in her absence, that the child live with the father.  Dr W initially gave the parties a clean bill of health in relation to mental health issues, but then he had a little niggle about it.  He commented very favourably about both parents and what they had done, but he said he formed a view that both parents were capable of providing more than adequately for the child’s physical, emotional and intellectual needs.  In relation to the father he found: “I did not form a view that his current mental state represents any threat to his capacity to parent.” Dr W reported on a long history of low-dose anti-depressant medication and symptoms that he said he did not think ever went beyond those of an adjustment disorder with anxiety.  However, he thought that at one point, at the worst point, the father’s symptoms may have exceeded a threshold for a depressive reaction.  There is some evidence about the father’s concerns in relation to his work. 

23. As to the mother, Dr W noted that there was no psychiatric history.  He reported on her views about the child, and particularly in relation to the allegations she had made against the father.  He said:

    There are several possibilities.  There is a notion of excessive sensitivity or even paranoia.  But the most severe end of the spectrum is paranoid schizophrenia. 

24. In the latter regard he reported that there was no evidence of the requisite degree of disorganisation in her thinking or communication, but a lesser but quite still serious degree could be a paranoid state.  He did not consider that the mother was in a paranoid state because she did not show the requisite degree of organisation – I think he meant ‘disorganisation’ – suspiciousness and irrationality.  He went on:

    The least serious condition is that of an overvalued idea when a person develops a fixation with a particular world view, often precipitated by a particular incident, and seems to be able to find evidence supportive of this idea from the flimsiest of circumstances.  This is not a psychotic disorder whereas the first two are.  And it is my view that if the court is of the view that [the mother] has cast far too wide a net in her thinking, that this is the most likely underlying state.

25. Dr W went on to say that such a state can have an effect on parenting.  The report was dated 3 April 2008, just before the mother kidnapped the child. 

26. Dr W made a subsequent report.  The mother says that it has been contaminated in the forensic sense because only one party had input to it.  Nevertheless, the report is a fairly compelling document.  It appears that the kidnapping scared him.  He was taken to the fact that the child had been kidnapped, and he prepared a letter which went to the ICL, which highlighted his concerns in relation to the mother.  Dr W was horrified by what had happened and afraid of what might happen.  The letter was sent in May 2008 and went on to say that if the situation was as the father described, then he was concerned about a more than usual level of risk for the child.  He noted that often abductions are by a parent returning to a place where they have a base, and family support, and so on, and he understood that was not the case here.  He wrote:

    Under the current circumstances, I’m very concerned that my findings during the assessment represent a significant lapse in judgment and that her removal of [the child] from this jurisdiction also represents another very significant lapse of judgment. 

27. And he was concerned about what other lapses of judgment there might be.  He said he was concerned that, if the mother thought that the child would be returned to the father, then she might feel that that was a fate worse than death, which could lead to her harming the child or herself.  Dr W wrote that he did not want to be alarmist about it, but he said that that risk needs to be entertained.  He acknowledged that an overseas jurisdiction might take: “the view that my report has not been tested and that the appropriate place for it and other evidence to be tested is in the Australian jurisdiction”.

28. And, of course, that is true:  neither of Dr W’s reports has been tested.  Coming back to the issues.  As to the maturity, sex, lifestyle, background of the child and either parent - I don’t think that’s a relevant consideration.  The child has had more travel than children should have, and he has been separated from one parent and then the other because of what has happened.

29. As to the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.  I have already addressed that.

30. They are the matters that I am to take into account.  Each of the parties wants to put more material on before the interim residence application is determined.  The only issue before me is about the mother’s time with the child.  She has been the primary caregiver.  Before the kidnapping, Dr W raised a concern about the possibility that the mother’s beliefs were in a spectrum from quite paranoid thinking to a conviction about a world view, and he thought that they were at the less serious end of the scale.  Then, only a few days later, the mother removed the child from Australia and Dr W hardened up his concerns about the mother.

31. The main reason for supervision is the kidnap risk.  Talking to the mother during submissions, it is hard to see why she would be in any different position today than she was in April 2008.  She said to me that she now understands that she is able to ask for expedition of her application.

32. No harm will come to the child under supervision.  There are some side benefits, as the parties have acknowledged.  Supervision ensures that there will be no inappropriate or negative comments against the father, no influencing of the child, and that no false allegations can be made against the mother for doing those things.  Therefore there is a protective element to supervision in those ways.

33. It is artificial, it is expensive, it is limited.  They are the downsides to supervision.  However, it protects the child from something worse - the risk that the mother would, again, decide to take matters into her own hands and run away.  It is concerning that on the day she took the child, there had been a period of supervised time with the father; there were not any recent circumstances giving rise to concerns about a physical abuse of the child; and the authorities charged with testing allegations had closed their books on the issue.  The mother said that there had not been any investigation by the authorities.  I am not sure what type of investigation she means.  There can be physical examinations of a child for evidence of penetration.  Such examinations can be harmful in themselves.

34. The mother needs to be careful about this.  She needs to get some advice about it.  She cannot simply bring before the court evidence of a theory about how child sexual abuse is identified.  The courts have been chastised over and over again about taking into account a theory that exists, in one place or another, about an issue, instead of evidence on oath from an expert qualified to give the evidence in relation to the ways in which those things are done.  That is usually done through a single expert.

35. I understand that the mother is aggrieved in relation to the reports of Dr W and she will want another expert.  Because of her conduct there was never an opportunity to test his reports.  In any event that is how expert evidence would normally come before the court.  It may be that she will not be successful in arguing for some other approach.

36. The mother says in effect, “Well, my brother has put his house up, my mother has lost her house because of what I’ve done.  I don’t have any money to run away.  I’ve paid more attention to whether the child attended at school than whether he saw the father for two years, and, therefore, you can be confident that I won’t steal the child again.” 

37. I am dealing with the matter at a very preliminary stage.  The bare background facts are unusual, alarming and horrifying.  I need to take a conservative approach about this little boy.  It is obvious that, for the time being, the mother’s time with the child needs to be supervised.  It is the mother’s case that the entire world is out of step except her.  That is a hard case to run.  The authorities at every point, the court system, the psychiatrist, the services in the Netherlands, everybody is out of step, in the mother’s mind.  There is a theoretical chance that she could be right.  There are terrible injustices done every now and then, but I cannot find, on an occasion like this, in a hearing conducted on the papers, that her view is more probable than not.

1. I will make the order for the time proposed on behalf of the child.  As Mr Holmes has repeated on a number of occasions, the mother would be aware that the door is open to supervised time at the C Contact Service if she was willing to look at that.  I think the ICL would join in that application.  Therefore, if the parties agree to something else in writing, well and good, but I will put the arrangements proposed by the ICL, in place as a minimum position.

2. The next issue is how the cost of supervision be paid.  The costs of the two options will work out as being about the same because there has been such a long delay in supervised time being taken up.

3. I don’t have any real evidence before me about the parties’ financial circumstances.  The father is in receipt of a pension associated with his retirement from his work.  Both parties have clocked up hundreds of thousands of dollars in legal fees.

4. The mother says she’s on Centrelink benefits.  That is all I know. 

5. It is not uncommon that the person for whom the supervision is arranged would be required to make the payments.  It is an aggravating factor in this case that the costs will be greater because the mother has made an election in relation to the C Contact Service, which would be more affordable.  In those circumstances it is appropriate that she pay the costs.

6. I am told that there are financial issues between the parties.  There may be assets of the marriage and that is a different issue for the parties to take up. 

7. Nextly, there needs to be directions for preparing for the interim hearing and whether the hearing should be before or after the mother’s goes before the criminal courts in relation to the abduction.  Those proceedings come before those Courts on 31 October.

8. These proceedings are in the docket of Watts J.  It may be that he will hear the interim applications.  I have a strong view that the proceedings should not be listed before somebody other than Watts J or me.  Even for the limited hearing today it took me a long time to get across the material.  That will be repeated every time a new judicial officer comes into the matter.  In my view, the case needs to be dealt with by one of us for the time being, unless neither of us is available.

9. I think there is wisdom in the matter being dealt with on an interim basis to take the parties through to a final trial after the criminal matter has been determined.  The only date I have is 8 December 2011.  It may be that Watts J has an earlier date.  The parties are back before his Honour later this month.  In any event his Honour will be able to make a direction that the matter be brought forward to a different day.  If Watts J disqualifies himself, the matter will have to be allocated to someone else.

10. An application been made for a non-denigration order and that is a sensible thing in the circumstances.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 18 August 2011.

Associate: 

Date:  31 May 2013