Walters and Walters

[2008] FamCA 720

FAMILY COURT OF AUSTRALIA

WALTERS & WALTERS [2008] FamCA 720

FAMILY LAW – CHILDREN – With whom a child lives

APPLICANT: Ms Walters

RESPONDENT: Mr Walters

INDEPENDENT CHILDREN’S LAWYER: Jaquie Palavra

FILE NUMBER: TVC 156 of 2007

DATE DELIVERED: 25 August 2008

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Monteith J

HEARING DATE: 1 and 2 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Anne Demack

SOLICITOR FOR THE APPLICANT: Boulton Cleary and Kern

COUNSEL FOR THE RESPONDENT: Mr Michael Fellows

SOLICITOR FOR THE RESPONDENT: MacDonnells Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Justin Greggery

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Jaquie Palavra, Legal Aid Queensland

Orders

1.        The Application in a Case filed on 26 June 2008 be dismissed.

2.        Liberty to apply with respect to costs.

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

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 156  of 2007

Ms Walters

Applicant

And

Mr Walters

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is the return of an Application in a Case filed on 26 June 2008 by the mother in which she seeks orders that the orders made on 15 February 2008 be discharged and in their place, that the parents have shared parental responsibility and that the children live with the mother and father on an equal shared care, week-on-week-off basis.  It is proposed that the equal shared care arrangement continue throughout the whole of the year including all school holiday periods other than Christmas, and that for the Christmas school holiday periods, the children spend one half of each Christmas school holiday period with each parent.  There are further provisions with respect to special days, telephone communication and the like.

2. The Response by the father seeks that the Application in a Case be dismissed and an order for costs. 

3. If I were to dismiss the Application in a Case, the effect would be that the parenting orders made on 15 February 2008 would remain in force until the trial of the proceedings.

4. Because of the difficulties that this case raises, I offered the parties a speedy trial which could have been held in September rather than proceeding with this Application in a Case. The mother, through her Counsel, declined that offer and decided to proceed with the Application in a Case.

orders of 15 february 2008

1. Orders were made on 15 February 2008 after a hearing that occupied 13, 14 and 15 February.

2. I set out hereunder the terms of the Orders that were made at the conclusion of that hearing:

   IT IS ORDERED THAT:

   1.Pursuant to Section 70NFB, that [Ms Walters] must forthwith enter into a Bond for a period of two (2) years in a sum of  two thousand dollars ($2,000.00) that she comply with the terms of these Orders.

   2.The Order of this Court made on 11 December 2007 in so far as it relates to the children, [L] and [K], be varied by vacating the orders numbered 1 to 10 and 12 to 14 inclusive and substituting the following consent orders numbered 3 to 14.

   IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER:

   3.The children, [L], born […] February 2000 and [K], born […] December 2001 live with the father.

   4.The children spend time with the mother each alternate weekend, from the cessation of school on Friday to the commencement of school on Monday, such time to commence on 29 February 2008.

   5.The parents have equal shared parental responsibility for the children.

   6.The mother and father facilitate, and equally share the costs of, confidential counselling for the children as may be recommended by the Family Report writer, and to facilitate such counselling for the period recommended from time to time by the children’s counsellor.

   7.The mother complete a “PPP” parenting course, and a Parenting Orders Program at the earliest practicable opportunity, but not later than three months from the date of  these orders.

   8.The mother be at liberty to telephone the children each Tuesday and Friday at 6.30 pm commencing Tuesday, 4 March 2008.

   9.The mother be at liberty to telephone the child, [L], at 10.00 am [in] February 2008, for his birthday.

   10.An updated Family Report be prepared as near as practicable to the date which is three months from the date of these orders.

   11.The mother be restrained from discussing with the children, or permitting them to remain in the presence or hearing of any such discussions, any matters relating to these Family Court proceedings or criminal proceedings relating to the charges against [Mr M].

   12.The father be restrained from discussing with the children, or permitting them to remain in the presence or hearing of any such discussions, any matters relating to the criminal proceedings relating to the charges against [Mr M].

   13.The matter be relisted for further hearing not earlier than three months from the date of these orders.

   14.That any party, including the Independent Children’s Lawyer, be at liberty to apply in respect of these orders including any alleged breach thereof, upon giving three days notice of such application to the other parties.

   IT IS FURTHER ORDERED:

   15.Pursuant to s 70NFB(2)(g), the Respondent Mother pay all of the costs of the Applicant Father to be taxed on an indemnity basis in default of agreement.

   16.Pursuant to s 70NFB(2)(g) the Respondent Mother pay all of the costs of the Independent Children’s Lawyer to be taxed as between party and party in default of agreement.

   17.The Applicant Mother, having discontinued the Contempt proceedings, pay all of the costs of the Respondent Father in the Contempt proceedings to be taxed on an indemnity basis in default of agreement.

   18.The Applicant Mother, having discontinued the Contempt proceedings, pay all of the costs of the Independent Children’s Lawyer in the Contempt proceedings to be taxed as between party and party in default of agreement.

   19.Pursuant to Section 121(9)(g) my Reasons for Judgment published on 15 February 2008 finding that the contraventions by the mother were a serious disregard of her obligations under the primary order be published to the Director General of the Department of Child Safety.

3. It will be seen that the Orders of 15 February provided for the vacating of Orders numbered 1 to 10 and 12 to 14 inclusive, which had been made on 11 December 2007.

4. The Orders that were made on 11 December 2007 were made by me by consent varying some property Orders made by the Federal Magistrates Court on 13 March 2007 and inserting paragraphs 1 to 15 being child orders.

5. The Orders made by the Federal Magistrates Court on 13 March 2007 in relation to children provided that the children live with the mother and spend time with the father each alternate weekend and Wednesday night.  They also provided for equal shared parental responsibility.  They did not provide for the children to spend time with the father during holiday periods.

6. It was a result of this omission and after considerable negotiation between the parties that the matter came on before me on 11 December 2007, just before Christmas, in which I made orders providing for the children to spend holiday time with the father.

7. For present purposes, it is sufficient for me to say that the Orders provided that the children spend half of their school holidays with the father.

8. In spite of those Orders having been made on 11 December 2007, the mother refused to allow the children to spend half of the school holiday period with their father.

9. It was a direct result of that failure that the matter came before me on 13, 14 and 15 February of this year.

10. The matters that were litigated before me in February related to the mother seeking to have the father dealt with for contempt of Court for an alleged breach of undertakings given by him to the Court, and the father’s application to have the mother dealt with for contravening the Orders that were made on 11 December 2007.

11. After three days of hearing, the mother discontinued her contempt proceedings against the father and I found that the mother had contravened the Orders.

12. The consequences were that I ordered that she entered into a Bond for a period of two years in the sum of $2,000, that she comply with the terms of these Orders, that I varied the Orders that I made on 11 December so that the children lived with the father and spend time with the mother each alternate weekend and that I ordered that the mother pay the father’s costs on an indemnity basis and the Independent Children's Lawyer’s costs as between party and party.

13. Because I think it is important for a better understanding of the proceedings that have been brought before me by way of Application in a Case, I set out hereunder my Reasons for Judgment delivered on 15 February 2008 with respect to the contravention proceedings and the indemnity order with respect to costs.

    Reasons for Judgment

    1.This is an application by the Applicant husband in contravention proceedings filed on 23 January 2008 against the respondent mother to treat the admissions by the mother that she contravened the primary order made by consent on 11 December 2007 on three separate occasions as serious contraventions under section 70NFA.  It is not contended that a previous order has been made that would satisfy section 70NFA(2)(a) so therefore I have to be satisfied that the mother behaved in a way that showed a serious disregard of her obligations under the primary order. 

    2.The primary order provided, inter alia, that the subject children should live with each parent for one half of all school holiday periods.  Since separation in December 2006 the father had not had the children for any of the school holidays or for any time of the Christmas holidays in 2006.  Although the mother asserted that she was prepared to allow the father time with the children at school holidays there is not one piece of correspondence that confirms that was her position.

    3.Although the father had requested half the school holidays over the Christmas/New Year 2007/2008 the mother did not agree.  The father brought an urgent application before me on 11 December 2007, in effect at one minute to midnight, seeking half holiday time and after negotiations that lasted most of the day and involved the independent children's lawyer, who supported the half holiday time, a consent order was made late in the day of 11 December 2007.

    4.On the evidence I am persuaded that the mother has not encouraged or supported the father having time with the children since separation.  Further, she has either accepted wild allegations made up by the children or has fabricated such allegations.  On the evidence I am unable to decide which.  However she was a most unimpressive witness whose credibility was left in tatters by the end of the cross-examination.

    5.It is in this context that the breaches of the order took place.  The father had given to the Court an undertaking that he would not allow the children to have any contact with [Ms N], his present partner, or Ms N’s three children and would not allow or permit the children to be taken to [R], the home of Ms [N]. 

    6.This undertaken was given on 21 November 2007.  Its relevance is that the child, [L], nearly eight, has made allegations of a sexual nature against [Mr M], one of the children of Ms [N].  These allegations are being dealt with by the appropriate authorities and I do not wish to say anything about them which may prejudice or affect their outcome, suffice it to say that the mother alleges that the children, [L], nearly eight, and [K], six, told her that they were taken to [Ms N]'s home by their father and his mother in their father's car; that they sat in the back and that [Mr M] came and spoke to [L] saying he was, "dead meat", for having spoken to the police and spat on him, and then [Ms N] and their father came out of the house and [Ms N] sat in the back of the car with them and opened a present given to her by the father for her birthday. 

    7.The mother alleges this took place on the Friday, which was 14 December 2007 and by the Monday, 17 December a letter had been written by her solicitors to the father's solicitors alleging a breach of the undertaking and denying the father time with the children over the school holidays.  By the end of that week it must have been obvious to the mother that something was seriously wrong with the allegations.  Not only were they strenuously denied by the father but a stream of statutory declarations had been provided to her establishing that the events could not have happened on the Friday.

    8The mother had the advantage of seeing two family reports prior to these events.  The first dated 6 June 2007 and the second 7 November 2007.  In the first the report writer states, at paragraph 80:

    In summary, [L] presented at the interview ready to launch into an attack on his father which, from the timing and his use of language, in my view, suggests an element of coaching.  His claims of his father's using physical discipline seem inconsistent with both parents' remarks about their mode of discipline.  The level of distress in making such claims suggests he was struggling to be so negative about his father.  At the observation with his father [L] appeared comfortable and was able to assert himself with his father during their game together.  In my opinion [L]’s remarks are more likely to reflect his allegiance to his mother and his desire to protect his mother after his exposure to the conflict between the parents both in the pre-separation phase and since.  It seems that his perception that his father is establishing a new relationship has been confusing and led to feelings of being betrayed by  his father.   Hopefully the father can sensitively assist [L] in this regard.

    9.Then at paragraph 85 the author says:

    While there are few significant issues distinguishing each parent's capacity in regard to the children the alleged remarks by the children are of some concern and suggest the parents are not protecting the children from their conflict.  [L]’s remarks at interview are indicative of him having felt the need to adopt a protective role with his mother and maintain a negative stance with his father.  His presentation at interview suggests he is experiencing considerable distress in having to take sides in the conflict.  In my view it is imperative that the parents address this immediately and develop some strategies to better protect the children.

    10.At paragraph 88 she says:

    [L]’s remarks at interview may have been scripted to some extent but they do suggest he is feeling personally drawn into the parent's conflict in a way that does not suit his developmental needs.  If he perceives the father to be forming a new relationship this will add to his current dilemma about taking sides.  I would suggest the parents consider using an approved child and family counsellor to assist [L] and [K] with the necessary adjustments they are having to make.

    11.In the second report of 7 November, comparatively shortly before the orders were made, the same report writer says, at paragraph 34:

    The mother advised that there are no current provisions within the order for school holidays and she was unaware of the father's request until the second week of the holidays.  She added that she strictly adheres to the Court order, which does not include holiday provisions.  She stated that she had Sundays off to spend with the children over the holidays or they went to the maternal grandmother.  [The mother] stated that if she gave him holiday time the father would request child support adjustments and she is on the cusp of changing levels of child support.

    12.Then at paragraph 62:

    At interview [L] was asked to play a game in which he is to give three magic wishes.  He stated that his first wish was that, "Dad was dead", because he teases me.  He presented this in a spontaneous, slightly off hand, manner rather than with any emotional intensity.  His other wishes related to an Xbox game he wanted.  This comment is congruent with his remarks at the interview of the family report in June with a softer tone.

    13.At paragraph 65:

    As soon as [L] saw me at the father's observation three days later he said he wanted to change his wish, referred to above, so that all of his family stayed alive for ever.  [The father] reported separately that [L] had been very dejected the previous day and had indicated he was distressed by something he said at the family report interview.  [The father] reported that [L] talked to him about feeling his father was trying to take him away from his mother.  From his report [the father] seems to be able to reassure [L] that his parents can share time with him.

    14.The mother brought contempt proceedings against the father by application filed on 14 January 2008.  She did this in spite of all the evidence, which threw considerable doubt on the accuracy of the allegations and she refused the father any time whatsoever with the children over the holiday period as provided for in the primary order.  The father brought contravention proceedings on 23 January 2008. 

    15.There are two further pieces of the jigsaw that I think are important, (a) when asked, after having received all the material that threw considerable doubt on the allegations why she didn't reconsider her position, she replied she had decided on a course of action and was committed it [sic]; and (b) a piece of evidence that I believe was critical evidence was left out of her affidavit and her mother's affidavit.  That piece of evidence is that when the grandmother picked the children up on 13 December 2007, the Thursday, they told her that they were late because they had been with their father buying a present for [Ms N].  That day can be confirmed because the father has a banking record to show the purchase. 

    16.What is critical is that they did not tell their grandmother that they had been taken to [Ms N]'s house, that they had unwrapped the present in the presence of [Ms N] or that [Mr M] had come to the car, said anything to them or spat on [L] as was later alleged.  It is inconceivable that if those things had happened they would not have told their grandmother at the same time as they told her about purchasing the present.

    17.Serious disregard is not defined in the Act.  I have been referred to Elspeth & Peters & Ors (2007) FLC 93-341, a decision of the Full Court, where after an examination of a line of authority the Full Court states, at paragraph 66:

    What seems to be the common thread is that the more serious sanction should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order.

    18.In the circumstances set out above and after having heard the mother cross-examined over many hours I have come to the conclusion that this amounted to a wilful and deliberate attempt on her part to resist carrying out the primary order.  Therefore I propose to deal with the contraventions under subdivision F of division 15A of part 7 of the Act.

    And:

    Reasons for Judgment

    1.Mrs Pagani of Counsel for the Independent Children’s Lawyer, has advised me that the Independent Children's Lawyer does not seek indemnity costs so that the order that I make with respect to the mother paying costs to the Independent Children's Lawyer will be that they are to be taxed as between party and party in default of agreement.  In relation to the costs that I have ordered that the mother pay to the father, I have in the course of argument referred to Colgate Palmolive & Cousins a decision of Shepherd J in the Federal Court of Australia reported at 118 ALR at page 248 and I have quoted from it at some length and I do not propose to do it again.

    2.One of the decisions that is referred to in Colgate Palmolive is the decision of his Honour Woodward J in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401 and his Honour there said:

    It is appropriate to consider awarding indemnity costs whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success.

    3.The general authorities  have been followed in the Family Court of Western Australia see Munday and also in Kohan & Kohan (1993) FLC 92-340, a decision of the Full Court. It is clear that I have a discretion in this case to make an order for indemnity costs. In my reasons delivered this morning I made it clear my views about the case and the reason why I decided in the circumstances to deal with this under the subdivision (F) of the Family Law Act as being a more serious contravention because I took the view that the contempt proceedings has had been brought by the mother have been brought on the basis, as I said, that she had either accepted wild allegations made up by the children or has fabricated such allegations.

    4.The mother was put on notice with respect to indemnity costs by the father by a letter of 3 January 2008.  In my view, the proceedings by the mother which are inter dependent upon the contravention proceedings, because the contravention proceedings follow upon her refusal to obey the orders made by the Court on 11 December on the basis of her allegation that the father contravened the undertaking that he had given and that was the basis for the contempt proceedings.

    5.It appears to me that her contempt proceedings that she embarked on and continued until she discontinued them yesterday, and the consequential defence of the contravention proceedings until she admitted her contraventions yesterday, were commenced or continued in circumstances where she, properly advised, should have known she had no chance of success.  In the circumstances I propose to order that the costs to be payable to the father that I have already ordered be as agreed, or in default of agreement, taxed on an indemnity basis.

1. As will be seen from my earlier Reasons for Judgment, the Undertaking given by the father which the mother alleged had been breached, had been given because of allegations made by the eldest child, L, of a sexual nature against Mr M, one of the children of the father’s present partner.

2. This allegation is in the hands of the police but has caused major disruption to the family life of the father, his present partner and the blended family.

3. As I indicated in my Reasons for Judgment (see para 4):

   On the evidence, I am persuaded that the mother has not encouraged or supported the father having time with the children since separation.  Further, she has either accepted wild allegations made up by the children or has fabricated such allegations.  On the evidence, I am unable to decide which.  However, she was a most unimpressive witness whose credibility was left in tatters by the end of cross examination.

The hearing before me on 1 and 2 July 2008

1. As will be seen from the orders made on 15 February 2008, I ordered that an updated Family Report be prepared as near as practicable to the date which was three months from the date of those orders, and that the matter be relisted for further hearing not earlier than three months from the date of those Orders.

2. As I have indicated, the matter came on before me by way of a further Application in a Case filed 26 June 2008.  In that Application, the mother sought orders for shared care.

3. Although Ms Demack, who appeared on behalf of the mother, in her written submissions stated:

   This matter has had an unusually large number of applications before the Court before final orders have been made.  That is a regrettable situation for all concerned.  The matter should be given trial directions by your Honour.

   My offer to have the matter set down for a speedy trial in September rather than proceed with the interim application was rejected by the mother.

4. In spite of the terms of the orders sought in the Application in a Case, Ms Demack advised me that the mother sought interim orders in the terms of recommendations contained in paragraph 97 of the Family Report dated 28 May 2008.

5. This is the third Family Report written by Ms D for these proceedings.  The first was dated 6 June 2007, the second the 7 November 2007 and the last, the 28 May 2008.

6. In the first report, the author recommended that the children live with the mother and spend significant and substantial time with the father.  In the second report, the author recommended that the children live with the mother and spend alternate weekends from Thursday to Tuesday morning with the father and half the gazetted school holidays.  In the most recent report, the author recommends that the children live with the father and spend alternate weekends from Thursday after school to Tuesday morning and half the gazetted school holidays with the mother.

7. It is that last recommendation that Ms Demack seeks that I order on an interim basis. 

8. Although I had envisaged when I made the orders of 15 February 2008 that a Family Report would be prepared within three months with a view to reviewing the interim orders that I had made as a result of the hearing that took place on 13, 14 and 15 February, it is a clear from a reading of the Family Report dated 28 May 2008 that it is not a report directed towards what interim orders I should make pending the trial but is a Family Report identifying what recommendations the report writer intends to make, on the present material before her, on the trial with respect to what final orders I should make.

9. There is nothing in the Report showing the reasoning as to why these orders should be made on an interim basis.  In fact, there is nothing in the report that suggests the recommendations were intended for interim orders.  Everything in the report suggests that they were intended by the author to be recommendations made on the trial.

10. As Mr Fellows, Counsel who appeared on behalf of the father, points out, the recommendations of the report writer are as yet untested.

11. This, in my opinion, is not simply a forensic point.  There are serious questions that need to be determined by trial which is why I offered a speedy trial for these proceedings rather than proceeding down this dry gully.

12. It is convenient if I set out the Summary provided by the report writer in her most recent report:

    Summary

    88. The dispute between [the mother and the father] has escalated since the family report in November with a continuing pattern of alleged disclosures by the children resulting in allegations against [the father] (and his partner).  This has resulted in traumatic Court events that have left both parents with financial and emotional wounds.

    89. On the basis of this assessment [the father] appears to have risen to the challenges of being the primary parent since February and coped well with meeting the children’s needs.  He is confident that he and the children will be able to settle back into the blended family situation with [Ms N], and Ms [N] has confirmed her commitment as well.  It seems likely that there will be changes for the children’s routine if and when they move back into a blended family situation with [Ms N] but given her apparent competence and the father’s parenting capacity I do not anticipate significant problems with this change.  [The father] appears able to put some of the post separation conflict behind him and prioritise the children in his attitude towards the mother.

    90. [The mother] has shown some contrition in regard to her lack of credibility at Court in February and is acknowledging the need to improve her ability to protect the children from the conflict between the parents.  However she has remained somewhat condescending in her view of the father as a parent and continues to view him as non protective with the children.  In this regard if the children move back into her primary care, it is possible they will feel some pressure to align with her against the father.  Her continuing view of the father as intimidating and aggressive towards her must also impact on her ability to view him positively in regard to the children.

    91. The children are bonded with each parent and have expressed a view that they want to spend more time with their mother.  [K] has always appeared less affected by the conflict between the parents and comfortable in each parent’s household and her presentation at interview on this occasion was consistent with that.  [L] has presented at each interview consistently upset and embroiled in the conflict between his parents.  Although he is clearly missing his mother, on this occasion he presented as more confident and less pressured, and appeared more bonded with his father which may suggest he feels less need to demonstrate an alignment within the father’s household. 

    92. While both parents are articulating the need to “move on” from their conflict and prioritise the needs of the children my view is that equal shared care of the children is not appropriate for these parents as they do not have the capacity to communicate and collaborate sufficiently well.  The children deserve both parents actively involved in their life but my opinion is that at this stage they will most benefit from having one parent in a primary role.

    93. While in previous reports I have recommended in favour of the mother having a more primary role because of her strong bonds with the children from birth, I am now recommending in favour of the children remaining in the father’s care and having a block period of five nights with their mother.  My reason for this change is my concern about Ms [Walters’] serious loss of child focus in her apparent pursuit of punishment for the father.  This has been mostly [sic] clearly evident in her willingness for [L] to become a witness, her deprivation of holiday visits for the father on several occasions, and her willingness to have the children’s father gaoled.  There is also some evidence that while she is acknowledging the need for a more cautious approach in responding to disclosures by the children, she holds a view that the father is not protective of the children.  This combined with her condescending attitude towards the father at interview suggest she may find it difficult to promote the children’s relationship with their father and quarantine them from any further exposure to allegations between the parents.

    94. It is my view that [the father] is more accepting of the children’s bonds with their mother and has emotionally disengaged from the mother in forming a new relationship.  It is therefore more likely the children will feel less pressured in his household and he will continue to facilitate the children’s relationship with their mother.

    95. There was nothing elicited at interview to suggest the parents should not continue to have joint parental responsibility for long term decisions.  Hopefully they will eventually be able to speak about arrangements for the children by telephone but to prevent such problems as overlapping on medical care, it would be helpful for the parents to use a communication book.  Given the past acrimony between the parents where possible changeovers should occur at the children’s school.

    96. In my view the counselling for the children was a short term therapeutic measure aimed at supporting [L] and [K] during a time of major change.  It seems likely it has achieved that purpose and given the financial constraints of the parents it may be advisable for the counselling to come to a conclusion.

13. In support of the Application in a Case, the mother filed an affidavit on 5 June 2008.

14. The purpose of the affidavit, in part, is to explain the mother’s actions and behaviour that were the reason for the hearing before me in February of this year.  She sets these matters out in paragraphs 8 to 23 of her affidavit, which I will set out hereunder:

    8.At paragraph 93 of Ms [D]’s latest report, she says that I have suffered a serious loss of child focus in my apparent pursuit of punishment for [the father].  Whilst I understand this statement, I disagree with it.  I am entirely child focussed.  I honestly do not wish to punish [the father].

    9.I deeply regret the events that occurred leading up to and during the contravention and contempt proceedings that took place before this Honourable Court in February of this year.  I do take responsibility for the decisions that were made by me, or on my behalf, during this period of time, however, I would like this Honourable Court to understand my feelings of confusion, anxiety and concern around this time and the role that was played by my legal team.  I am not blaming my legal team:  I simply wish to state my recollection of what occurred.

    10.The alleged incident involving [Ms N]’s son [Mr M] and our child [L] occurred on the 10 November 2007.  I reported the incident to the Townsville Police Station and I also reported the matter to my then solicitors.  I was genuinely concerned for [L]’s personal safety.  As this Honourable Court is aware, [Mr M] was then charged with certain offences by the Police and those charges are pending.

    11.After consultation with my lawyers, [the father]’s lawyer was notified that I would now not agree to [the father] seeing the children unsupervised.  I did not cease contact altogether.  I also requested that [the father] ensure that the children have no contact with [Ms N] or her children.  Annexed hereto and marked with “TLW 2” is a copy of the letter from my then solicitors, LA Ward Legal to MacDonnells Law dated 12 November 2007.  In this letter, I contemplate [the father] possibly returning to unsupervised contact with the children at a later point in time.

    12.[The father]’s response was to completely deny the possibility of the allegation that [L] made against [Mr M] and to insinuate that I played a role in the allegation being made.  However, [the father] did agree to provide certain Undertakings to the Court to ensure that his contact with the children proceeded.  Those Undertakings were given and the contact resumed.

    13.At all times, I was acting on the advices that I received from my then lawyers.

    14.Then, on the 16 December 2007, the children informed me that they had come into contact with both [Ms N] and [Mr M], contrary to the terms of [the father]’s Undertaking.  Again, I immediately consulted with my lawyers.  What followed was a flurry of activity including denial of contact and Applications and Counter-Applications including Contravention proceedings commenced by [the father] and Contempt proceedings commenced by myself, all of which concluded in the hearing before this Honourable Court in February this year.

    15.Ms [D] quite rightly criticises me for my “willingness for [L] to become a witness”.  I regret that this occurred and am thankful that the decision was made not to allow [L] to give evidence.  Whilst I take responsibility for the Application, the idea was put to me by my previous legal team.  I was informed that the only way that the allegation could be proved was by eliciting evidence from [L] personally.  As I had very little other evidence to go by.  I recall that the matter was only raised with me a day or two before the trial started and my legal team prepared the documents which I first saw and signed on the morning of the first trial date.

    16.At this time, I was extremely confused, upset and very concerned for the safety of our children and I wanted them to be protected.  In what [L] was saying to me, he was clearly fearful of [Mr M]. He didn’t like him and was scared of him.  I know that doesn’t necessarily mean that the allegation was true but I was very concerned and worried about him at the time.

    17.I was also a young and inexperienced […] and all of my recent training was centred on a new style of thinking and manner of processing information, always from an evidentiary point of view.  We were trained to never let any evidence escape.  As a […], I am aware that evidence from children is not really uncommon, although I have since quickly realised that is more so in the State Courts and, particularly, with criminal proceedings.  I believe that due to my training as a […] I had difficulty in separating my role as a member of the […] to that of a mother and I therefore did not contemplate at the time that I was effectively requesting that [L] give evidence against his own father which may give rise to his father going to gaol.

    18.After consulting with my new lawyers, I have come to better understand just how extremely rare it is in the Family Court for children to be allowed to give evidence in proceedings.  However, with my state of confusion at the time; the advice that I was receiving from my then legal team (who had already prepared a draft of the evidence proposed to be provided by [L]), coupled with my training to date as a […] regarding the importance of evidence, I did instruct my then lawyers to proceed with the Application.  I deeply regret that decision and accept that it was not in [L]’s best interests.

    19.I am also quite rightly criticised for my “willingness to have the children’s father gaoled”.  Before the contempt proceedings, no discussion was initiated with me by my then legal team about what punishment, if any, was proposed for [the father].  The first time this was canvassed with me was when I was sitting in Court and His Honour asked my Counsel about what punishment I was proposing for [the father].  My Counsel had a short discussion with me, via the instructing clerk, who asked me to the best of my recollection “What do you want?  Do you want gaol time”?  My Counsel then informed the Court that a gaol sentence was appropriate.  I have since learned that there are a whole host of other options that I could have discussed with my legal team, such as counselling, parenting courses or perhaps changes to the time that [the father] spends with the children.  None of those matters or options were discussed with me.

    20.I accept that, suggesting that [the father] should be gaoled for his alleged conduct at that time, was entirely wrong and I apologise to him and to the Court.  I don’t want [the father] to go to gaol.  Upon reflection, the idea that I was requesting that our son be a party to any process which results in his father being imprisoned shocks and stuns me and I deeply regret even contemplating that [L] be involved in this process.

    21.The major matters that concern Ms [D] occurred a good while ago when [the father] and I were in serious dispute regarding the care of the children.  The main events occurred in November and December of last year and then culminated in the difficult trial that occurred in early February of this year.

    22.I don’t wish to be punished any more for the mistakes that I made some time ago.  Most importantly, I do not wish the children to be punished in being deprived of having the most beneficial relationship with me, as their mother and the person who has been mainly responsible for their nurturing and upbringing since their birth.

    23.I am not motivated to punish [the father].  My sole motivation is my children’s welfare and to ensure that they are cared for in the best way possible.  This necessitates the children spending more time with me than envisaged by Ms [D] in her latest report.

15. Clearly, these matters are all triable issues.  How they are ultimately determined on a trial will have considerable influence upon what parenting orders are ultimately made in this case.  It is impossible for me to determine these issues on an interim hearing.

16. The determination of these issues will ultimately determine what recommendations of the report writer are accepted by the Court.

17. To now argue that the report writer’s recommendations made in her most recent report should now be accepted on an interim hearing without being tested, and in particularly, tested against the matters that I have just referred to, is a nonsense.

THE LAW

1. Goode and Goode is the leading case on how a Court should approach these matters on an interim hearing.

2. I have identified the competing proposals, identified the issues in dispute and identified the agreed facts.

3. It is not disputed that there should be equal shared parental responsibility so the question is should I make an order that the children spend equal time or substantial and significant time with the mother.

4. It is not, at this time, argued that the children should live with the mother or spend equal time with the parents.

5. What is argued is that I should, on this interim hearing, order that the children spend time with the mother as has been recommended in a Family Report which I find has been prepared for the purposes of the trial.

6. Ultimately, I have to be persuaded that it is in the children’s best interests, which are determined pursuant to s 60CC, that I should make the orders sought by the mother which reflect the recommendations in the report.

7. Having regard to the matters that I have referred to in these Reasons for Judgment and in particular, not being able to properly assess the mother’s evidence as is deposed to in her most recent affidavit or the recommendations of the report writer in her most recent Family Report, I consider that it is in the children’s best interests to leave the orders that were made on 15 February 2008 in place until such time as a trial can occur and these factual matters can be properly determined.

8. It is simply not possible to say that it is in these children’s best interests, on an interim basis, to make orders in terms of the recommendations contained in the most recent Family Report.

CONCLUSION

1. In conclusion, I find that it is in the children’s best interests for the orders made on 15 February 2008 to remain in force and consequently, I propose to order that the Application in a Case filed by the mother on 26 June 2008 be dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Monteith.

Associate: …

Date:  25/8/08