Wattel and Evans

[2009] FamCA 700

FAMILY COURT OF AUSTRALIA

WATTEL & EVANS [2009] FamCA 700

FAMILY LAW – CHILDREN – with whom a child communicates – with whom a child spends time – best interests of a child

Family Law Act 1975 (Cth)

C v C (1995) 20 FamLR 24

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Wattel

RESPONDENT: Ms Evans

INDEPENDENT CHILDREN’S LAWYER: Ms Chan

FILE NUMBER: BRC 4793 of 2008

DATE DELIVERED: 27 April 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Kennedy
Delaney & Delaney

RESPONDENT: Ms Evans appeared in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED THAT:

1. Justice Murphy be assigned Judge Manager in this matter.

2. The matter be listed to a first day of trial commencing at 10.00am on 21 October 2009 in the Brisbane Registry of the Family Court of Australia, at which time the Court and the parties are to have available the reports of Dr M and the Family Report.

IT IS DIRECTED THAT:

1. Each of the parties shall, by not later than 4.00pm on 7 October 2009:

   a.advise the other party and the Independent Children's Lawyer of the orders in precise terms, sought by each of them at the final hearing of these proceedings;

   b.file and serve on the other party and the Independent Children's Lawyer, a list of the issues which each party contends are the issues central to the determination of the best interests of the child … born … August 2002, and orders consequent upon findings about best interests, and those issues, in each case, shall take account of all issues raised by Mr P, Dr M, and the Family Report writer engaged by the Independent Children's Lawyer.

IT IS ORDERED THAT

1. Paragraph 14 of the Minutes of Order made by Consent on 6 November 2006 be discharged.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The father communicate by telephone with the child … born … August 2002 between 5.00pm and 5.20pm on Wednesday 6 May 2009 and Friday 8 May 2009 and between those times on each alternate Wednesday and Friday thereafter and to communicate by telephone with the child between 5.00pm and 5.20pm on Monday 11 May 2009 and between those times on each alternate Monday thereafter.

IT IS FURTHER ORDERED THAT

1. The Independent Children’s Lawyer have leave to issue subpoenae to all such persons, entities or organisations which she considers reasonable under the circumstances.

UPON THE UNDERTAKING THAT each party who inspects subpoenaed material for the purposes of proceedings, that such information shall not be communicated or used in any way whatsoever other than in the course of the proceedings to which they relate.

1. All parties have leave to inspect all documents produced pursuant to any of the subpoenae issued, subject to any objection being taken either to the production of documents or to them being inspected or copied by the recipient of the subpoena in which case the matter should be referred to Justice Murphy for further order.

2. Subject to any objection being taken by any person who receives a subpoena, the Independent Children’s lawyer have leave to copy such documents as she might consider to be reasonable.  Leave is not extended to other parties to copy documents without further order of the Court.

AND IT IS FURTHER ORDERED THAT

1. The parties do all such things, provide all such authorities, sign all such documents and pay equally all such reasonable fees as might be necessary so as to permit the Independent Children’s Lawyer to obtain and provide to the Court a Family Report pursuant to s 62G of the Family Law Act 1975.

2. Leave is granted to the Independent Children’s Lawyer:

   a.to provide to Dr M and the proposed single expert providing the Family Report copies of all such Court documentation or other documentation attained during the course of these proceedings subject to providing to each of the parties a written list of the documents that have been provided to each of those experts;

   b.to permit Dr M, should she so choose, to consult with and discuss all such aspects relating to the issues being investigated by her with the single expert preparing the Family Report;

   c.to permit the single expert preparing the Family Report, should they so choose, to consult with and discuss all such aspects relating to the issues being investigated by them with Dr M;

3. The Contravention Application filed on 14 November 2008 be dismissed.

4. There be no order as to costs.

5. 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.

NOTATION:

At the first day of trial set down for 21 October 2009, it is anticipated that the parties will be in a position to:

a.discuss, refine and define the issues which are in dispute between them, and how such issues impact upon the final decision to be made by the court in the child’s best interests;

b.indicate the list of all witnesses they intend to call at the final hearing of the matter and provide an outline of the evidence which each witness shall be providing at such final hearing;

c.provide an accurate estimate of the length of time to be allocated to the final hearing, following all parties conferring with each other to arrive at such estimate, and taking into account the anticipated time to be taken to cross-examine any witnesses required for cross-examination;

d.file and serve a list of all documents intended to be tendered at the final hearing, and to provide copies of such documents to the other parties.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4793 of 2008

MR WATTEL

Applicant

And

MS EVANS

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. At a time when the parties’ child, who was born in August 2002, was about 3 ½ she was already the subject of protracted proceedings between her parents.  Those proceedings, some three years later, continue. 

2. At the time of the earlier proceedings a report prepared by a psychiatrist, Dr R, and dated 27 June 2006 was prepared.  That report is annexed to an affidavit of the father filed on 27 March 2009.  As part of that report  Dr R said:

   "The allegations of sexual abuse have arisen in the context of a very stressful and acrimonious confusing situation involving [the mother], [the mother’s] mother and partner, [R], [the father], [H] and [the mother’s] father. There appear to be shifting alliances between these adults.  Previously [P] was not particularly friendly with [the father] and now this relationship has improved".

3. The conflict, the stress and acrimonious and confusing situation referred to by Dr R nearly three years ago clearly continues.  If anything, it appears to have got worse. 

4. The allegations previously made in the context of the conflict just referred to include allegations by the father that the child was at risk of sexual abuse in the mother's care.  Certain comments were made about those assertions by Dr R. 

5. Ultimately, orders were made by agreement (in circumstances which the parties each contend had different motivations) that see the father spending time with the child, now that she has started school, each second week from after school Thursday to before school on Monday. 

6. Those orders also contemplate telephone time between the father and the child.  That telephone time has given rise to conflict, sad though that might be for the continuation of the relationship between the child and each of her parents.  The order provided specifically at para 14:

   "that the child communicate with the father by telephone between 5 pm and 5.20 pm each Wednesday, Friday, and Monday (when the child is not otherwise in his care) for such contact to be initiated by the father telephoning the mother's contact telephone number and with such calls to be unmonitored".

7. The nature of the disputes between the parties is not of dramatic concern for present purposes save to point out that it centres on whether the father is entitled to speak to the child by telephone, for example, on the Monday between 5 and 5.20 pm after she has been returned to her mother's care. 

8. Some attempt was made to, as it were, broker a solution to this difficulty between the Court and the respective parties. 

9. The Court has experienced some considerable difficulty in understanding precisely what orders will be sought by each of the parties at a final hearing of the matter.  As one example the mother's position seems to have changed from the third and seventh weekend of each school term to no time at all; whereas the father now supports orders in accordance with the consent order earlier referred to.

10. I am by no means convinced that the proposal just referred to will necessarily remain the mother’s position leading up to the final hearing. 

11. The father's position is, for present purposes, set out in the alternative.  The first is broadly in accordance with the orders currently in existence.  The orders said to be sought in the alternative seek, in the first instance, time with the child in the Thursday of the week in which he otherwise would not spend Thursday through Monday time.

12. In the context of the agitation of these issues on a final basis, a Children's and Parents' Issues Assessment has been prepared by a family consultant, Mr P, dated 15 December 2008. 

13. The position with respect to the parties' final positions appears to have caused Mr P some confusion, just as it caused me some confusion.  He reports, for example:

    "[the father] initially informed me that he is applying for a "seven/seven split equal parenting" amounting to a shared care arrangement.  He then later stated: "I would be prepared to extend current arrangements for one extra day."  I cannot say why he changed his position but the statement came after we had discussed the possible implications of the parties' conflict on [the child]".

14. The shifting position of the mother has already been referred to, and - to me at least - remains confusing.

15. What is particularly important, in the context of the decision before me (which is whether that first additional Thursday time should be implemented) is Mr P’s opinion as follows:

    "Irrespective of the reasons, it is apparent that the parties in this matter have established such a hostile mistrustful post-separation relationship that it is negatively affecting their ability to effectively co-parent.  Furthermore if not modulated it threatens to cause significant problems for Cassandra's - that is an error; it should read [the child’s] - social and emotional wellbeing. 

    Although I suspect each party has played a contributing role [the father] in particular appears to have maintained a rigid and unremitting position making it very difficult for both parties to renegotiate boundaries and parenting roles.

    Maintaining a child's primary sense of security and belonging is vital to their future development and in this respect it is highly contraindicated to disrupt or disturb primary attachment relationship unless the caregiver poses a risk to the child's welfare".

16. Mr P goes on to recommend the obtaining of a psychiatric report and also recommends an Independent Children's Lawyer.  Ms O'Neill (who is represented by Ms Chan in the proceedings before me) has, subsequent to the report, been appointed as the Independent Children's Lawyer for the child.

17. Although this matter comes before me in the Judicial Duty List, I have indicated to the parties that, in light of the circumstances earlier described, and the long and sad history of this matter where the child’s parents seem to have been in dispute about her for the majority of her young life, the matter would be managed by me in my docket.  To that effect I have made an order that the first day of trial occur on 21 October this year. 

18. The time period between now and then will allow Ms O'Neill to obtain a psychiatric report from a reporting independent single expert psychiatrist, Dr M, and also a family report pursuant to s 62G of the Act from a qualified expert.

19. It is anticipated that the interviews and report timeframe for the former will not see that report available until towards the end of September. Dr M is apparently overseas for a period of time.

20. It seems to me that each of the parties ought have the benefit of, in the father's case, the assistance of legal representation and in each of the parties' case input and, if necessary, assistance from the independent children's lawyer to consider their positions consequent upon the receipt of the two reports just referred to. 

21. With that in mind, and as a result of the confusion experienced about the parties’ positions, at least by me, I have indicated clearly that the parties are to prepare and serve on each other the precise terms of orders sought by each of them by way of final relief, together with a statement of issues which refine and define the issues in dispute between them which, they each contend are crucially relevant to a determination of the child’s best interests by the Court.

22. I have also required the parties to confer with the Independent Children's Lawyer with a view to being in a position to discuss those issues at the first day of hearing on 21 October. 

23. In the usual course of events, if a family report, or indeed a Children's and Parents' Issues Assessment report was prepared by a family consultant from within this Court's Registry that person would be available on the first day of trial. 

24. I emphasise that it would be helpful if the family report writer, who is preparing the report for the Independent Children's Lawyer, was available to the Court at the first day of the trial of this matter on 21 October. 

25. The appearance by him or her would not necessarily be for the purposes of being cross-examined about the opinions expressed in the report, but, rather, the report writer would be in attendance in order to assist the parties, and the Court, in seeking to properly define (and confine and refine) the issues which the Court needs to determine in order to attempt to ascertain the child’s best interests in the absence of agreement between her parents.

26. In that context, then, the parties and the Court ought have, in the usual course of events, available to them significant important expert data upon which they can consider their respective positions relative to the child’s best interests. 

27. I have an expectation that the parties will take into account those matters and consider deeply and at length what they consider to be in the child’s best interests prior to the first day of trial of this matter on 21 October.

28. The remaining issue for determination in that respect is whether, between now and 21 October, and in the absence of the two reports to which I have just made reference, an order should be made altering the existing situation reflected in the consent orders made between the parties on 9 November 2006. 

29. I have had regard to the provisions of the Act, the Objects, Principles, and Considerations contained in it, and I have also obviously had regard to what the Full Court of this Court had to say about the conducting of interim proceedings within that legislative context in the decision of Goode & Goode.

30. I am persuaded that the single most important issue for this young girl, pending the further hearing of the matter, is that which is alluded to in the report from Dr R and which stands as a continuing significant issue in the opinion of Mr P in the Children and Parents' Issues Assessment to which I have made reference. 

31. I refer, of course, to what Dr R described as a "very stressful and acrimonious confusing situation".  If it appeared thus to Dr R, it seems to me to be extremely likely that the child is suffering the impacts of precisely the same sort of situation. 

32. If there was any doubt about that in 2006 that doubt seems to me to have been significantly diluted by the opinion of another independent expert witness providing an opinion some three years later. 

33. I refer, of course, to Mr P’s opinion about the importance of maintaining a child's primary sense of security and belonging, and the importance of that to their future development.  I note in particular Mr P’s opinion that:

    "It is highly contraindicated to disrupt or disturb primary attachment relationship unless the caregiver poses a risk to the child's welfare".

34. It seems to me that changing the existing situation in respect of time is, at this point in time, and in the absence of further evidence available to the Court contraindicated in the child’s best interests. 

35. For that reason I reject the application to include an additional Thursday as part of the orders.

36. The terms of para 14 of the orders made by consent on 6 November 2006 appear to me to be clear.  Nevertheless, it seems that those provisions have created significant difficulties and have resulted in an application for contravention essentially emanating from them. 

37. The father's central position is, as I understand it, that the mother has effectively gone out of her way to curtail time between he and the child and to, as it were, make his exercising time difficult. 

38. The mother's central proposition is, as I understand it, that the father is, in effect, using these proceedings as some form of emotional leverage against her and/or is constantly changing his position so as to create emotional conflict for her. In essence, the mother contends that the father’s application is centred on his emotional issues with respect to her as distinct from the child’s best interests.

39. Those seemingly central contentions, and any other contentions made by the parties directly relevant to the child’s best interests, cannot be determined by me within the context of these truncated interim proceedings and all that implies (see C & C and those aspects of the decision in Goode & Goode relating to that issue).

40. They are highly likely to be relevant issues at the final hearing of this matter.  No doubt, each of the parties will understand that the attitude of each of them towards the child and the responsibilities of parenting is a significant consideration which the Court must take into account when arriving finally at orders in the child’s best interests.

41. In lieu of pursuing an application for contravention based on those issues revolving around telephone time, a proposition was commendably advanced on behalf of the father that there be no telephone communication on a Monday when changeover occurred otherwise in accordance with the orders.  That seems to me to be an intelligent position. 

42. The father contends, however, that telephone time on a Wednesday between 5 and 5.20 pm immediately prior to the child coming into his care after school the following day should remain. 

43. There is of course no "magic answer" to issues of this type although the best interests of the child should, as in respect of all other decisions, be the criteria by which a determination is made. 

44. In my view, it is likely that the order that is in the child’s best interests in that respect is an order that seeks to limit the amount of conflict between the parties in respect of this aspect (just as in respect of any other aspect). 

45. It seems to me that the best way of doing that is to provide for there to be three periods of telephone time in each fortnight, one on the Wednesday and Friday of the week in which the father does not otherwise have time between Thursday and Monday, and on the Monday of the following week. 

46. In order to give effect to that finding I will order the father communicate by telephone with the child between 5.00pm and 5.20pm on Wednesday 6 May 2009 and Friday 8 May 2009 and between those times on each alternate Wednesday and Friday thereafter and to communicate by telephone with the child between 5.00pm and 5.20pm on Monday 11 May 2009 and between those times on each alternate Monday thereafter.

1. I also order the Independent Children’s Lawyer has leave to issue subpoenae to all such persons, entities or organisations which she considers reasonable under the circumstances.

2. I will give leave to all parties to inspect all documents produced pursuant to any of those subpoanae, subject to any objection being taken either to the production of documents or to them being inspected or copied by the recipient of any subpoena, in which case the matter should be referred to me for further order.

3. I order that all parties have leave to inspect all documents produced pursuant to any of the subpoenae issued, subject to any objection being taken either to the production of documents or to them being inspected or copied by the recipient of the subpoena in which case the matter should be referred to me for further order.

4. Subject to any objection being taken by any person who receives a subpoena, the Independent Children’s lawyer has leave to copy such documents as she might consider to be reasonable.  Leave is not extended to other parties to copy documents without further order of the Court.

5. I will further order the parties do all such things, provide all such authorities, sign all such documents and pay equally all such reasonable fees as might be necessary so as to permit the Independent Children’s Lawyer to obtain and provide to the Court a Family Report pursuant to s 62G of the Family Law Act 1975.

6. I do not think leave is necessary, but to the extent that it is, I give leave to the Independent Children's Lawyer to provide to Dr M, and the proposed single expert family report writer, copies of all such Court documentation, or other documentation obtained during the course of these proceedings, subject to providing to each of the parties a written list of the documents that have been provided to each of those experts.

7. In light of the father’s position earlier referred to an the procedural and other orders made by me today, I think it is appropriate for me to dismiss the application for contravention filed on 14 November 2008 and direct that there be no order as to costs.

I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:     

Date:              4 August 2009