Wheldon and Dinh

[2011] FamCA 864

FAMILY COURT OF AUSTRALIA

WHELDON & DINH [2011] FamCA 864

FAMILY LAW – Contravention Application – Father spend time with the children unsupervised

Family Law Act 1975 (Cth)

A & A (1998) FLC 92-800
Russell and Close (Unreported, Full Court of the Family Court Australia, Fogarty, Baker, Lindenmayer JJ, 25 June 1993)

APPLICANT: Mr Wheldon

RESPONDENT: Ms Dinh

INDEPENDENT CHILDREN’S LAWYER: Ms Buckland

FILE NUMBER: BRC 8725 of 2008

DATE DELIVERED: 27 October 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 October 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. The Contravention Applications filed by the father on 2 December 2010 and 30 September 2011 be dismissed.

2. The orders of 7 December 2010 be discharged.

3. Paragraphs 2 to 6 of the orders of 17 March 2011 be discharged.

4. Paragraphs 5, 6, 7 and 8 of the amended orders of 20 August 2010 be discharged and the orders 6 to 11 herein be made in lieu.

5. Paragraphs 9 to 17 of the amended orders of 20 August 2010 shall remain in full force and effect.

   Time with the Father

6. The children S born … 2004 and T born … 2008 shall spend unsupervised time with the father at all such times as might be agreed between the mother and father in writing and, in the absence of any such agreement, in accordance with the succeeding provisions of these orders.

7. Commencing on Saturday 29 October 2011 the children shall spend unsupervised time with the father:

   a.And the father shall collect the children at 1.40pm and deliver the children at 7.30pm from outside the C Library, D Town on:

   i.Saturday 29 October 2011;

   ii.Saturday 12 November 2011; and

   iii.Saturday 26 November 2011.

   b.Except in respect of the weekend on which Christmas Day falls in 2011, from Friday 9 December 2011 to Monday 12 December, and each alternate weekend thereafter, between the times, and otherwise in accordance with the following paragraph of these orders.

8. The times during which the father shall exercise unsupervised time and the means by which that time shall occur is as follows:

   a.On a school day: From respectively after school and childcare Friday until before school and childcare Monday; with the father collecting T from the said childcare centre at a time so as to facilitate collecting S from the B School on a Friday at 3.00pm and delivering T to the E Childcare on a Monday after 7.00am but immediately prior to delivering T to the B School by 8.45am;

   b.On a non-school day: At the C Library, D Town with the father to collect the children at 3.00pm Friday and return the children at 9.00am Monday;

9. The children shall, in addition, spend unsupervised time with the father during school holidays:

   a.For the Easter school holiday period in 2012 and each alternate year thereafter;

   b.For the second half of the June/July, September/October and December/January holidays in 2012 and each alternate year thereafter; and

   c.For the first half of the June/July, September/October and December/January holidays in 2013 and each alternate year thereafter.

10. In respect of the weekend of Friday 23 December to Monday 26 December 2011, the father shall collect the children at 3.00pm on Friday at the C Library, but shall deliver the children to the mother at the C Library at 2.00pm on Christmas Day.

IT IS FURTHER ORDERED THAT

1. To the extent that the exception provided for in Section 121(9)(g) of the Family Law Act 1975 (Cth) or the other provisions of that subsection do not otherwise authorise same, the Independent Children’s Lawyer be authorised to publish to the principal of the B School and the Director of the E Childcare or such other school, childcare centre or kindergarten that the children may attend, an account of these proceedings, namely:

   a.A copy of the orders and judgment delivered herewith;

   b.A copy of the orders and judgment delivered on 20 August 2010.

2. Save in a genuine emergency each of the mother and the father be restrained from issuing proceedings for parenting orders for a period of 6 months from the date of these orders and then not unless and until either or both of them, as the case may be, have provided the Independent Children’s Lawyer with a copy of any and all orders intended to be sought by them.

3. In the event that either party alleges contravention of these orders, they shall first give notice to the Independent Children’s Lawyer (during the currency of her appointment) of any intended application to that effect. Thereafter either party, as the case may be, have liberty to apply for such contravention to be heard on the earliest available date.

AND IT IS FURTHER ORDERED THAT

1. The Independent Children’s Lawyer shall be discharged 6 months from today.

2. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8725  of 2008

Mr Wheldon

Applicant

And

Ms Dinh

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Sadly, for T, born in 2004 and T, born in 2008 parenting issues between their parents remain on foot in this court some three years after they were commenced by proceedings in the Federal Magistrates Court in August 2008. 

2. During that three year period, a number of allegations have been levelled at the father by the mother.  During that three year period, the father has had very little, if any, unsupervised time with his young children. 

3. Ultimately, the allegations just referred to formed the basis of a trial held before me over three days in July 2010.  At the conclusion of that trial, I delivered reasons extending over some 50 pages. 

4. Those reasons attempted to deal with each and every allegation levelled by the mother as against the father.  Those reasons also attempted to examine in copious detail the foundation for the allegations made by the mother and attempted, during that process, to arrive at findings consistent with the evidence.  As can be seen by reference to the reasons, those allegations, and the issue of unacceptable risk more generally, were considered under a number of different headings. 

5. Judges of this court are always and perpetually haunted by the notion that their decisions with respect to unacceptable risk of any form of harm, whether – as in this case – it be sexual harm, or indeed, other forms of harm, may in fact, be wrong.  The best that can be done is to apply conscientiously and diligently a proper process of analysis and experience to the allegations as made and presented.  Frequently it is difficult to arrive at decisions and the issue of lingering doubt is one that is always present in every such case. 

6. Having said each and all of those things, and having, I hope, undertaken the diligent process of analysis just referred to, I arrived at the following conclusions in respect of this case:

   The preponderance of the evidence including it might be noted, the evidence of the mother’s witness, [Ms F], was to the effect that the interactions between the father and the children were affectionate, loving and appropriate.  They exhibited no fear of him and certainly no reluctance to either be in his care or to express perfectly normal and appropriate loving reactions towards him.  On all of the evidence before me, and taking into account my observations of the mother and the father during the course of the proceedings, I am not satisfied that the mother has come close to satisfying the onus of establishing to the appropriate standard, that sexual abuse of [T] has occurred and / or has occurred at the hands of the father.  Further, I am not satisfied on the evidence before me that the father presents an unacceptable risk of abuse or indeed, any other harm to [T].

7. As is so often the case in cases of this type, the allegations made by the mother were attended by an assertion by her that she possesses an implacable belief that the children have been harmed or are at risk of harm from the father. 

8. That issue too, deserves to be examined with appropriate diligence and to have an appropriate process of analysis applied to it.  Again, I hope that that is the case here. The reasons reflect a lengthy consideration of that particular issue insofar as it applies to the mother in this case. 

9. Specifically, for example, I said “when cross-examined [the family consultant] [Mr G] said that he was ‘not surprised’ that the mother had voiced a firm statement that she would not accept unsupervised time”. Mr G said that he felt the “mother’s position [regarding unsupervised time] has consolidated” and his assessment of the mother was that she displays genuine “difficulty with [the prospect of] a finding of no risk or no abuse and the difficulty flows directly from her beliefs.” 

10. I went on to say:

    180.The issue of a personally held belief that does – or may – impact on a  person’s parenting capacity was highlighted in the unreported judgment of Russell and Close (Full Court of the Family Court Australia, Fogarty, Baker, Lindenmayer JJ, 25 June 1993), referred to in a number of cases since, including A & A (1998) FLC 92-800. There is an important distinction drawn between a belief genuinely held and one which is reasonably or objectively based. The inquiry is not into the reasonableness or rationality of the mother’s belief, but whether she genuinely holds it and its impact on an ultimate assessment of orders that meet the children’s best interests.

    181.The resolution of that issue is not, in this case, cut and dried.  I tend to agree with the submission of the ICL that the mother’s attitude had an air of theatricality or, perhaps, over-dramatisation, about it.  I am concerned, though, that cultural issues of which I am not aware may play a part.  So, too, I find aspects of the mother’s behaviour odd in a person with a genuine belief that something sinister had happened to her young daughter and I again refer to the absence of enquiry at the kindergarten.

11. Ultimately, findings were made about this issue just as findings were made about unacceptable risk.  I said this:

    193.With some reservations, I am, ultimately, prepared to allow the charitable view to inform my findings about the father’s capacity and willingness to promote a relationship between the children and their mother and findings as to his “attitude to the children” and “the responsibilities of parenthood”.

    194.While I consider that the mother harbours attitudes and beliefs that will be difficult to alter, I am not persuaded of the impossibility of such beliefs being shifted in light of this judgment and the ending of this litigation.  Further, the court process has, whatever its failings, given the mother the opportunity to have her views ventilated and determinations made and I consider this will ultimately be of assistance in the process of altering her views. 

    195.Specifically, I am not satisfied that the mother will refuse, or fail, to do what is required of her by the orders I make. While the mother expresses her view stridently and emotionally in the course of court proceedings, I assess her as likely to commit, ultimately, to a process that will allow of a relationship between the father and the children. 

12. Subsequent events might be seen to point to those views being a triumph of hope over expectation or, at least, to have been significantly too optimistic. 

13. The father first filed an Application for Contravention on 2 December 2010 which asserted a number of contraventions of the order by the mother. The application was accompanied by an affidavit outlining those alleged contraventions.  Subsequently, on 30 September 2011, the father filed a separate application alleging yet further contraventions of the orders by the mother. 

14. In the intervening time however, the mother had filed a Notice of Appeal against the orders made by me at the trial to which I have just referred.  Subsequent to the filing of that appeal, the mother applied for a stay of the orders made by me.  I heard that application together with an application with respect to the alteration of named supervisors on 7 December 2010.

15. In the reasons for judgment accompanying the orders made on that day, I set out the Notice of Appeal and its rather odd terms.  Ultimately, however, I held:

    17.I am not prepared to find, in the context of this application, having regard to all of the matters raised by me during the course of the earlier reasons for judgment, including those to which I have specifically referred, that the appeal filed by the mother – and indeed this application – is to use the father’s words, “A stalling exercise.”

    18.I am not prepared to find that the appeal – or indeed this application – is vexatious, instituted primarily for the purposes of delay or that it seeks to subvert the orders made at the trial. 

16. That view, too, might perhaps be seen as somewhat charitable or optimistic, given that some nine months later, on 7 September 2011, the mother filed a Notice of Discontinuance of that appeal, and the hearing of it was vacated. 

17. I am not prepared to find in the course of these proceedings that even with the benefit of that hindsight, that the appeal was instituted solely for the purposes of delay. But, an index of suspicion arises in the circumstances of this case in light of the findings made by me at the trial. 

18. Nevertheless, pending the hearing of that appeal, the father’s initial application for contravention which had been filed in December was adjourned until after the determination of the appeal. 

19. I granted the mother’s application for a stay of so much of the orders made by me that permitted of unsupervised time.  In orders made on 7 December 2010 a further order was made, permitting of a change of supervisors. 

20. Plainly the intention behind the orders read together was to avail the father of supervised time pending the hearing of the appeal.  Subsequent allegations by the father assert some difficulties with some supervised time but the father readily concedes before me today, that, in the main, supervised time as contemplated by the orders took place as those orders would dictate. 

21. It is primarily for this reason that I am ultimately not persuaded that, even with the benefit of hindsight, the appeal was brought otherwise than genuinely.

22. The precise terms of the order for stay were: “until delivery of orders by the Full Court of the Family Court of Australia … the father should spend time supervised by his adult son, [Mr J Wheldon] with the children … for a period not exceeding six hours each alternate Saturday …”

23. It seems that, notwithstanding the Notice of Discontinuance filed by the mother, that order is relied upon as founding a position by her that the order for unsupervised time would remain stayed notwithstanding the discontinuance of the appeal by her and the terms of the earlier order. 

24. Again, I am prepared to take a charitable view in light of what the mother asserts to be difficulties with the English language, and assume that she is genuine in her stated position that this was her genuine belief and any non-compliance with orders might be viewed accordingly.

25. It will be appreciated that the application for contravention filed on 30 September 2011 together with the earlier application which had been adjourned pending the appeal, have, then, a significant factual context. 

26. The mother did not as she was entitled to do, stay silent in the face of those applications for contravention.  Rather, she filed affidavits on 19 October 2011 relating to the earlier of the two applications for contravention and 25 October 2011 relating to the later application for contravention.  In each of those affidavits, the mother deposes to a number of matters that might be seen to be “reasonable excuse” for any alleged contraventions within the meaning of the Act. 

27. The father, whether he accepts the factual contentions of the mother or not, had received the benefit of having read what the mother said about the alleged contraventions.  I enquired of him at the outset of these proceedings whether his intention was to proceed with the applications for contravention (which might be seen as having at their core, a form of punitive action against the mother) or whether, in fact, his focus was on seeing his children whether in accordance with the existing orders or otherwise. 

28. The father who, like the mother, represents himself, made it very plain that his first and only concern was to see his daughters at the earliest opportunity.

29. In that respect, the findings made by me after the trial of this matter, in respect of the nature of the relationship between the children and the father and his attitude towards the responsibilities of parenthood and the like refer. 

30. As a result, the father, if I may say so, sensibly determined to not proceed with the applications for contravention but rather to focus upon the concerns that he had about seeing his daughters. 

31. There was an indication that the proceedings should proceed in that way in the mother’s material.  As I said during the course of discussions with the father, each of the affidavits filed by the mother, imply, in asserting that there was good reason why time had not been availed of, as alleged, that time should in fact, occur. 

32. Given those two factors, I determined, with the father’s concurrence, and given my overriding obligation to act in the best interests of these as yet young children, to focus upon an outcome consistent with the best interests of these children, rather than to proceed with the applications for contravention. 

33. In that respect, the provisions of Division 12A of the Act should, in general terms be referred to.  Accordingly, effectively with the father’s consent, I dismissed the applications for contravention filed 2 December 2010 and 30 September 2011. 

34. Each and all of the circumstances earlier referred to give rise to a number of considerations directly relevant to the best interests of these two young girls.

35. With the discontinuance of the appeal there is nothing from a legal standpoint standing in the way of the orders made by me in August 2010 being carried into full force and effect.  In my view, they ought be. 

36. The mother who appears for herself but with an interpreter (and who also, I might add, received considerable assistance from the Independent Children’s Lawyer, who does the court the courtesy of remaining for these proceedings in light of the way in which they were conducted, despite at the outset, indicating a preference to be immediately discharged) made it plain that she remains concerned about her children. 

37. She also made it plain that the foundation for those concerns about her children remain those which were extensively examined, considered and decided upon at the trial which occurred in July 2010.

38. As I said during the course of discussions, no evidence filed subsequent to that trial and decision, suggests in any way, shape or form that the findings there made, or the orders there made, should be reconsidered. 

39. There is, though, a concern with respect to the immediate implementation of the orders in the precise terms in which they were made, in August 2010.  Since that time, the only time the father has spent with the girls has been supervised.  As can be seen by reference to both the orders and reasons, it was contemplated that, after a period of supervised time, that unsupervised time would commence and grow. (The sole purpose for the supervisor of time was to attempt to allay anxiety on the part of the mother and not because of any concern that the court had about the father posing an unacceptable risk to the children.)

1. The father has spent no unsupervised time in the period since the orders were made. 

2. One of the concerns flagged in the reasons for judgment in respect of submissions that were made at that time, that supervised time should in effect, occur indefinitely was that, if that was to occur, the only perception the children would have of their father is of a person who ought be feared by them or who otherwise poses a threat to them. 

3. Any such perception on the part of the children would be entirely contrary to the findings made by me about the nature of the relationship that they enjoy and should be entitled to enjoy in the future with him.  That remains a concern. 

4. Accordingly, it seems to me that I need to take account of the fact that the children will move from an extensive period of supervised time and a period of time that includes not spending time with their father, into a period of unsupervised time which has been delayed by reason of the facts and circumstances to which I have just referred.  In those circumstances it seems to me that I should allow an, as it were, settling-in period for the children. 

5. Discussion ensued about over what period of time that should take place.  The mother contends it should take place for six months.  I am not prepared to allow that period of time to elapse, given the facts and circumstances which have pertained to the period since the orders were made now over 14 months ago.

6. These children need, and should have, an appropriate loving relationship with their father and that should occur now. 

7. Accordingly, I propose to meet the concern that I have about a “settling in period” by allowing three periods of six hours as was initially contemplated in paragraph 6 of the orders, but only three periods.  Thereafter, it seems to me that the weekend time found to be in the best interests of these children, notwithstanding their respective ages and the other concerns raised by the mother, should forthwith take place. 

8. However, that, too, will be a new experience for the children as the facts just outlined made clear. Accordingly I propose to discharge the order that would otherwise have provided for them to spend half of the Christmas school holidays with their father and postpone the occurrence of school holiday time until the Easter school holiday period in 2012. 

9. Discussion ensued with the mother, again with the assistance of the interpreter and the Independent Children’s Lawyer, about the arrangements that might attend changeover and the like for those periods of time. 

10. I made it very plain to each of the parents that I was not prepared to contemplate the children spending periods of time alone either at the large shopping centre that is effectively agreed as being the appropriate changeover point, or at their respective schools or childcare centres. 

11. In that respect, it needs to be noted that T attends day care at the moment between about 7.00am and 6.00pm while T attends a school a relatively short driving distance away.  T attends school from about 8.45am in the morning until 3.00pm at times, it might be noted that are different to those times T attends childcare.  

12. In order to prevent either child being left alone at either of their respective childcare centre or school, the intent of the order is that the father will collect T from childcare so as to enable him to pick up T from school when school concludes at 3.00pm.  That will mean that T will finish at childcare earlier than she otherwise on those weekends when the father is spending time with the children.  I see no difficulty with that occurring. 

13. In a similar vein, the father will deliver T to childcare as it were, on the way to delivering T to school by 8.45am on the Monday following his period of time.  Again that represents a change for T but once again, it is not a matter to which I attach any concern.  

14. The Independent Children’s Lawyer was reappointed by order on 17 March 2011 in light of the facts and circumstances that had arisen to which I have earlier made reference.  Today, Ms Buckland who appears on behalf of the Independent Children’s Lawyer sought at the commencement of these proceedings to be discharged and excused from further attendance. 

15. I requested Ms Buckland to remain in light of what I considered might occur with respect to the father’s contravention application as I have earlier outlined in these reasons.  I expressed the court’s gratitude to Ms Buckland for doing so and record the fact that she has been of assistance during the proceedings today. 

16. Unfortunately for the Independent Children’s Lawyer perhaps, I consider that she yet has a role to play. 

17. The proceedings between these parties must for the benefit of these children, come to an end now.  It is imperative that these parents get on with the business of co-parenting these young children together. 

18. I accept that the mother does not accept the decision that I have made.  I accept that the mother considers that the decision I have made is wrong.  I accept and understand that she is upset by a decision that she considers to be wrong. 

19. Nevertheless I have, as I have attempted to outline earlier, brought such resources as I have to bear in the best manner in which I can, and I am as convinced as I can be on the evidence before me, and notwithstanding the fallibility of the process, that these children need and deserve to have an appropriate, loving and caring relationship with their father. 

20. With those matters in mind, I have determined that each of the parties should be precluded from bringing further parenting proceedings in this court without impediment.  I will require them to raise with the Independent Children’s Lawyer any concerns that they might have that might otherwise found any such application for any such parenting orders. 

21. I understand that applications for contravention might be sought in circumstances where the actions of one party or another might be seen to subvert or otherwise frustrate the orders which I have made.  I propose to make provision for that by permitting the parties to bring an application for contravention but having first given notice of their intention to do so to the Independent Children’s Lawyer. 

22. I make no secret of the fact that this order is put in place with a view to there being some, as it were, “supervision” of what I consider to be orders which should now be put in place by both parties whether one or the other are satisfied or dissatisfied with the orders that are made.

23. This litigation must stop.  These children must now have a relationship with each of their parents as the process of litigation that has now been on foot for three years contemplates. 

24. For those reasons then, I make the orders earlier referred to.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 27 October 2011.

Associate:

Date:  7 November 2011