Weiss and Arnold (No 2)

[2009] FamCA 343

FAMILY COURT OF AUSTRALIA

WEISS & ARNOLD (NO. 2) [2009] FamCA 343

FAMILY LAW – CHILDREN – With whom a child spends time – non-appearance of father in-person – interim orders pending resumption of part-heard final hearing

Family Law Act 1975 (Cth)

APPLICANT: Mr Weiss

RESPONDENT: Ms Arnold

INDEPENDENT CHILDREN’S LAWYER: Ms Judith Olsen

FILE NUMBER: NCF 941 of 2005

DATE DELIVERED: 22 April 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Murphy J

HEARING DATE: 22 April 2009

REPRESENTATION

APPLICANT: Appearing in person

COUNSEL FOR THE RESPONDENT: Mr Connors

SOLICITOR FOR THE RESPONDENT:

G & D Lawyers

Parramatta

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Harper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Boyd Olsen Lawyers

Newcastle

Orders

IT IS ORDERED THAT

1. The further hearing of this matter is adjourned for a further 3 days commencing at 10.00am on 30 November 2009 in the Newcastle Registry of the Family Court of Australia.

2. Any affidavit material in addition to that already filed, specifically confined to material essential to determine the issues in these proceedings, be filed and served no later than 4.00pm on 13 November 2009.

IT IS FURTHER ORDERED UNTIL FURTHER ORDER THAT

1. The application, made by the father (contained in a letter received by fax today), for unsupervised time pending the resumption of the final hearing of this matter, is dismissed.

2. The oral applications, made on behalf of each of the Independent Children’s Lawyer and the mother today, that the father spend no time with the child pending the resumption of the final hearing of this matter, are each dismissed.

3. The oral application, made, in the alternative, on behalf of the mother today, that the existing orders for the father spending time with the child Z born … July 1998 (“the child”) be varied so as to provide for monthly time in lieu of fortnightly time pending the resumption of the final hearing of this matter, is dismissed.

IT IS RESPECTFULLY REQUESTED THAT

1. The Director of the H Contact Centre take all such steps as might reasonably be open to him or her so as to permit the continuation of supervised time at that centre between the said child and his father and Mr F as earlier ordered by the Court and for that time to occur between the hours of 10.15am and 12.15pm if reasonably possible.

IT IS FURTHER ORDERED THAT

1. Publication of the following documents is approved, pursuant to s 121(9) of the Family Law Act 1975, by the Independent Children’s Lawyer to each of the Director of the H Contact Centre and the Director-General Department of Community Services or such authorised officer or officers as the Director-General might permit:

   a.The affidavits of the mother and her partner Mr F each filed on 2 April, 2009;

   b.These Orders;

   c.The Reasons for judgment herewith.

   and IT IS REQUESTED that, in respect of the H Contact Centre, the Independent Children’s Lawyer forward the said documents under cover of a letter detailing the allegations made by the child J and the fact that the most recent allegations are the subject of a police investigation, sending contemporaneously a copy of the said letter to the father and the solicitors for the mother.

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

   a.forward to Ms S all such documents filed by any or all of the parties subsequent to her second report dated 23 September 2008, PROVIDED THAT, not less than 14 days prior to such documents being delivered to Ms S, the father and the legal representatives of the mother are provided with a list detailing each such document intended to be forwarded; and

   b.avail Ms S of the opportunity to inspect documents produced by the NSW Police Service today, subject to the conditions of inspection contained in the order to that effect made earlier today; and

   c.Issue a subpoena to Dr G to give evidence and produce documents at the resumed hearing of this matter set down to commence on 30 November 2009 AND IT IS NOTED in respect of the doctor giving evidence that the court will seek to accommodate the doctor’s convenience by, if necessary, sitting as early as 8.00am and as late as 7.00pm to hear his evidence.

3. A transcript of today’s proceedings be prepared at the earliest opportunity, and provided free of charge, to the father, the legal representatives of the mother and the Independent Children’s Lawyer.

4. 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 DIRECTED THAT

1. Pending the resumed hearing in this matter, any application filed in respect of parenting issues be heard, if at all possible, by Justice Murphy by video-link, with all parties attending the Newcastle Registry so as to give effect to same.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 941  of 2005

MR WEISS

Applicant Father

And

MS ARNOLD

Respondent Mother

EX TEMPORE

REASONS FOR JUDGMENT

1. At the commencement of the third day of the final hearing of parenting orders before me the father did not attend Court at the appointed time of 9.30.  Subsequent attempts were made by the Court to contact the father on the mobile telephone number which it had for him.  Those attempts were unsuccessful. 

2. Subsequently, shortly prior to 10 o'clock, a letter was received, apparently signed by the father, on what appears to be his personal letterhead marked "Urgent Fax".  That letter was marked as exhibit A in these proceedings. 

3. In essence the letter indicates that the father is suffering what is said to be, I think, a significant exacerbation of his depressive condition for which it is clear on the evidence before me he has been receiving treatment for some time, including treatment from a psychiatrist and in respect of which he is currently medicated.

4. The letter also refers to a matter that arose in affidavits filed on 2 April 2009 - that is very shortly prior to the commencement of the final hearing - by each of the mother and her current partner. 

5. Those affidavits depose to a conversation for which each of the mother and her partner was present, during which J who is the eldest child of the mother, but not a child of the father, made a statement to the effect that the father in these proceedings had “raped him”.

6. It is of some considerable significance to note that, at the time of making that statement J was aged approximately 15. 

7. It seems that the statement by J was reported very soon thereafter to the police and it is clear on the evidence before me that there is a current police investigation in respect of that allegation.

8. Earlier this morning, the police attended at the hearing to produce documents pursuant to a subpoena issued by the Independent Children's Lawyer after receipt of the two affidavits to which I have just made reference. 

9. The police were represented by counsel and a decision was made after hearing submissions, that the parties have leave to inspect the documents produced by the police, but subject to certain conditions which I specified in an order made earlier today.

10. During an adjournment thereafter, given so that the parties could consider their respective positions in light of the facsimile transmission from the father, the mother and each of the legal representatives for her and the Independent Children's Lawyer have had the opportunity to inspect at least some of the documents so produced, but particularly a DVD.  That DVD has not been seen by me.  I am told that it contains a police interview with J in respect of the allegation to which I have just made reference.

11. A short time after Exhibit A was received, a further facsimile, again on the father's letterhead and again apparently signed by him and again marked "Urgent Fax" was received.  That letter has been marked as Exhibit B in these proceedings. 

12. That letter indicates that, pending the resumed hearing of this matter, consequent upon the adjournment sought by the father, he seeks an order that, "Contact with [Z] not be stopped". 

13. He says in the letter "I feel that if this was to happen it would not benefit [Z]" and goes on to say, "I would prefer unsupervised contact, but if you decide that supervised is the best for now, I will agree with whatever decision you make".

14. In an outline of case provided by the Independent Children's Lawyer at the outset of the final hearing on Monday, it was indicated that, subject to such evidence as might be revealed during the hearing, the Independent Children's Lawyer was likely to ultimately submit that the Court should make final orders that Z live with his mother and that the father spend no time with him. 

15. It was also foreshadowed as likely that an injunction would be sought restraining the father from having any contact with either Z or the two older children of the mother, J to whom I've already made reference and B.

16. The final hearing of this matter occurs in complex circumstances and in circumstances where, broadly described, Z and his two elder siblings, J and B, had been living with the father since early 2004. 

17. Upon the separation of the parties which occurred at that time, the mother, it is said, visited the children somewhere between four and six times in the four months until April 2004 - thereafter the mother spent no time with the children for a period of approximately 12 months.

18. Subsequent to that, the mother arrived unannounced at the house of the father and conflictual circumstances thereby created resulted in an Apprehended Violence Order being made and the children remaining in the father's care. Orders were made on 27 May 2005 for the three children to live with the father and to have contact with the mother supervised by the H Contact Centre referred to by the parties in these proceedings as the “Rainbow Contact Centre”.

19. As a result of earlier proceedings in this Court, an initial Family Report had been prepared by Ms S. On 15 March 2007, Mullane J made an order that the children live with the mother and spend no time with the father.  That is to say, the living arrangements of the children which had been in place for about three years were altered with a change in their day to day care being transferred to the mother.

20. At that time - based essentially, I think it's fair to say, on the Family Report prepared by Ms S - Mullane J ordered that the father spend no time with the children. 

21. Subsequently, on 11 February 2008, interim orders were made by consent providing that the father have supervised time with Z at the Rainbow Contact Centre.  Supervised contact has been proceeding at that contact centre since that time.

22. The application for adjournment made by the father is in the circumstances earlier described, particularly the, apparently unchallenged, evidence that he has been under psychiatric care for some time and has suffered a depressive illness for which he has been receiving treatment, including medication. Those factors result in his application for adjournment, although occurring in unusual circumstances, effectively not being opposed. 

23. In saying that, both the mother and the Independent Children's Lawyer have made clear their position, a position I should say shared by the Court and mandated by the Legislation, that these proceedings should conclude as soon as possible and that it is in the best interests of, not only Z, but his siblings, for those proceedings to conclude as soon as possible.

24. Nevertheless, both the Court, and, it seems, each of the other parties, accept that the reality of the situation, and in particular the father's condition, means that these proceedings will need to be adjourned part-heard. 

25. I sit in this Registry as a visiting Judge.  I indicated to the parties, and in particular to the father who required me to deal with his application for contravention at the outset of these proceedings, that it was unlikely that I would be able to return to this Registry before early next year.

26. That much remains true, but I have expressed to each of the parties today my genuine concern that, in the best interest of all of these children, including the child the subject of the competing applications before me, that findings be made, and orders based on those findings be made, as soon as possible.  With that in mind, I have determined to alter some prior arrangements so as to avail the parties of three further days of hearing commencing late November 2009.

27. The father has had no input into those dates, but they are dates which are suitable to the other parties and, given the circumstances to which I have just referred, the provisions of s 69ZN of the Act, and the fact that the father has some seven months notice of those dates, the trial will proceed on those days.

28. What falls for the decision now then is what should occur in respect of time between the father and Z in the approximate seven months or so until the resumption of the hearing.  If the existing orders are to remain, the father would see Z, all else being equal, on approximately 12 occasions between now and the resumed hearing, at the Rainbow Contact Centre.

29. There are issues about that time.  There is evidence before me that is has been necessary for some dates to be shifted.  So much might be expected given the ordinary exigencies of life applicable to each of the parents, and in the case of the mother, a household constituting herself, her partner, two teenage boys apart from Z and a tiny child.

30. The evidence appears to be that, if time at the contact centre was able to proceed between 10.15 am and 12.15 pm, the father could so organise his specific work arrangements so as to avail himself of that time. 

31. There is no evidence before me that indicates whether that time is available. Furthermore I have, as indicated to the parties, in the course of argument, taken judicial notice of the fact that the calls upon contact centres throughout Australia are significantly greater than the resources provided by those contact centres can accommodate.  I have assumed, consequent upon that, that the Rainbow Contact Centre is in no different position.  Neither of the parties represented before me suggests to the contrary.

32. An oral application was made on behalf of the mother that the current order should be varied so as to provide for monthly time rather than fortnightly time. 

33. It is accepted that the father, by reason of his absence, has had no notice of any such application.  It is said that, given the drain on resources to which I have already referred, together with the length of time over which time has taken place at the Rainbow Contact Centre, that the centre may not be able to avail the parties of any time, let alone fortnightly time. 

34. It is submitted that this of itself provides a reason for altering the time from fortnightly to monthly.  There is though, it is conceded, no evidence before me to suggest when precisely this particular contact centre might be able to avail time as requested or otherwise.

35. Because the father has had no notice of any such application by the mother and because I am not convinced that the alteration from fortnightly to monthly would necessarily impact upon the availability of time in any event, I do not accept the submissions made in that respect on behalf of the mother. 

36. In any event that submission made by the mother is an alternative submission.  The primary position of the mother is to support the position of the Independent Children's Lawyer that there should be no time between the father and Z pending the resumed hearing of this matter.

37. Whilst it might be correct to say that the father has had no notice of any application for such interim orders to that effect, he is clearly on notice of the Independent Children's Lawyer’s (and mother’s) position as outlined in, respectively, the Outline of Case document and Response.

38. The Independent Children's Lawyer’s position is informed, in part, by the fact that each of the legal representatives of the mother and the Independent Children's Lawyer have had access to the police interview conducted with J recently, produced in DVD form pursuant to subpoena, this morning. 

39. It is submitted that I should have access to the DVD in the sense that it should be shown to me and made an Exhibit in the proceedings.  Secondly, it is submitted by the Independent Children's Lawyer that Ms S, the Court appointed expert, who has provided two reports in this matter, should give opinion evidence, having herself seen the DVD, about the impact of that on any opinions that she might have with respect to risk.

40. I reject the submission that I should have access to the DVD and/or the evidence of Ms S as just described. 

41. Clearly (as quite properly, with respect, conceded by each of the counsel but particularly by the counsel for the Independent Children's Lawyer), there are difficulties with the proposed course of action.

42. If I was to receive that evidence I would be receiving it in the absence of the father.  That of itself I find particularly troubling. 

43. Secondly, I would, ultimately, be asked, as counsel for the Independent Children's Lawyer made clear, to infer from the evidence contained in the DVD that it reveals a real risk of abuse having occurred to J and, as a result, I should find there is a consequent increase in risk in any time between the father and Z.  Principally that increase in risk would be said to arise from the potential for what might be described as grooming behaviour on the part of the father towards Z.

44. A finding that there is a real risk that abuse has occurred to J is, obviously enough, a very grave finding.  Making that finding should, as it seems to me, be subject to the most careful analysis of the evidence in its entirety and made after all parties, including importantly, the person accused of the behaviour, have had the opportunity to not only see the evidence themselves, but also to make submissions in respect of it, including submissions in respect of conclusions that ought not be drawn from it. 

45. I repeat, the father is not here.  He has not had the opportunity to view the DVD and will not have the opportunity to make submissions in respect of it.

46. In respect of the proposed evidence of Ms S, it is important to note that the father makes a series of assertions in respect of the process and reports already conducted and delivered respectively by Ms S. 

47. A number of specific criticisms are made about her process. The evidence of the father, both in affidavit and in the witness box under what was ultimately a lengthy cross-examination, is inferentially at least, that Ms S was biased against him for reasons which he neither knew nor could explain, but which he says are evidenced by a number of specific matters including her reference to documents, which, he says, she didn't have.

48. Whatever view I might have of that specific topic, I have not had the advantage of hearing the father or the other parties cross-examine Ms S generally. In circumstances where the father makes a series of assertions about her process and her reports, it seems to me that I should be extremely cautious about accepting any evidence whatsoever from her in the absence of the father and all the more so, evidence that might be said to found submissions and ultimate findings about a matter as grave as that which lies at the centre of J’s allegations.

49. In any event, it seems to me that the finding just described is the very highest that the evidence could be put if I was to see the DVD. 

50. It needs to be borne in mind, that the time otherwise proposed, (save by the father) would occur at a contact centre where Z has been attending for some 12 months or so and where at least some of the issues in this unattractive and complex case have been brought to the contact centre's attention.

1. I would need to find, on an interim basis and without having made specific findings on all of the evidence, that the risk to Z from having time within the contact centre environment, including, specifically, the risk of grooming-type behaviour, or the risk of emotional abuse otherwise identified in the allegations before me, is such as to outweigh any benefit that Z might derive from spending time, albeit in a restricted supervised environment, with his father.

2. In that latter respect it emerges clearly from the reports of Ms S, and indeed from the mother herself, that Z has expressed a clear desire to see his father and, moreover, a desire to see his father significantly more frequently than what he does at the moment. 

3. I have little doubt that the views of Z and indeed the views of the other children will be the subject of further argument and submissions when this trial resumes.  The Act speaks of with respect to the benefit to children of having a relationship that might be considered meaningful in the particular circumstances of the case.

4. On an interim basis, where findings are unable to be made about virtually all of the central serious issues in the case, the benefit to Z of seeing his father, which would appear to accord with his wishes, outweighs the potential for any heightened risk emanating from any evidence arising in the proceedings, but about which I cannot, at this stage of the proceedings, make any findings.

5. That is not to say that risk is being ignored.  Rather, such risk as the reliable evidence indicates is, when balanced by benefits of time for Z, met by the imposition of supervision.

6. To the extent that there might be any increased risk emanating from the most recent evidence to which I have earlier made reference, that can be accommodated with a tolerable degree of comfort by, in addition, directing the Independent Children's Lawyer to provide to the Rainbow Contact Centre a copy of the affidavits of the mother and her partner filed on 2 April 2009, together with a covering letter in which the Independent Children's Lawyer advises the contact centre of the allegations contained in those affidavits and advises of the fact that there is an existing police investigation into those allegations which has, at this stage, included an extended interview between relevant police officers and the child J.

7. I make it plain that, in doing so, it is not intended that the contact centre, or any other parties, should necessarily proceed on the basis that the allegation has foundation or is indicative of any alleged risk. Rather that order is made so that, if the contact centre has arrangements which it puts in place in circumstances where allegations - I repeat the word "allegations" - are made of improper sexual behaviour, that would not otherwise be put in place in the absence of those allegations, then such relevant steps as might be taken by them can be taken in this case.

8. It is important, I think, to record, in light of the comments just made, that the allegations by J do not occur in a vacuum.  On the mother's own case, J made precisely the same allegation, in, it seems, almost precisely the same words, about her.  That allegation - that is that she raped him - was made in about August 2006 and is made in the context of three telephone conversations occurring between the mother and J occurring early in August 2006.

9. It is to be noted that at that time J was aged about 12.8, that is to say allegations made by him that his mother had raped him were made at a time when he was a child of some maturity, just as the allegations now made in the same terms about his father are made at a time when he is a child of some maturity.

10. I should also add that there is evidence, which I continue to find utterly perplexing, emanating from the father in the witness box about an assertion made apparently by the mother's sister, apparently in about 2002 or 2003 that she (that is the mother's sister) reports J as saying that his father had raped him.  Again I note the use of the same phrase. 

11. I repeat that, despite what I might respectfully describe as the best efforts of counsel for the Independent Children's Lawyer, and despite my own best efforts, the evidence in respect of this assertion remains, to me at least, unclear and perplexing.

12. The evidence, though, seems to include an assertion by the father that the mother's sister took naked photographs of J, included in which were photographs where J’s anus was exposed to the camera. 

13. It can be seen then that, whatever ultimate findings are made about risk and/or the occurrence of abuse emanating from J’s most recent statements, those statements occur within a context that is in an evidentiary sense, very complex.

14. The father, in the second of the two pieces of faxed correspondence to which I earlier made reference (Exhibit B) indicates what I and the parties took as an application for time between he and Z pending the resumed hearing of this matter, to be unsupervised. 

15. It will be plain from all of the things that I have said in relation to the dysfunctional nature of the co-parenting relationship, the past history, the allegations and counter allegations made by each of the parties against the other, and the statements made not only recently by J, but also earlier, together with the matters contained in Ms S’s reports, that, on an interim basis, the Court could not possibly be satisfied that ordering unsupervised time pending the resumed hearing, is in Z’s best interests.

16. Accordingly, I propose to ensure that the current arrangements for Z to spend time with his father continue. In order to effect that, I will make orders dismissing the various applications set out earlier in these reasons.

17. I will also order and direct with respect to action by the Independent Children's Lawyer as earlier indicated.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date:  24 April 2009