Whitman and Burr

FAMILY COURT OF AUSTRALIA

WHITMAN & BURR

[2008] FamCA 898

FAMILY LAW – CHILDREN – With whom a child lives pending trial– Views expressed by a child not the same as child’s best interests

Family Law Act 1975 (Cth) Part VII, Division 12A

Goode v Goode (2006) FLC 93-286

APPLICANT:

Mr Whitman

RESPONDENT:

Ms Burr

FILE NUMBER:

BRC6170

2007

DATE DELIVERED:

19 September 2008

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

19 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Pieterse

SOLICITOR FOR THE APPLICANT:

Quinlan, Miller & Treston

COUNSEL FOR THE RESPONDENT:

Mr Curran

SOLICITOR FOR THE RESPONDENT:

Morrison Lawyers

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ms Chan, Legal Aid Queensland

Orders

IT IS ORDERED THAT

The matter be listed for final hearing over 5 days, such dates of the final hearing to be allocated at a callover before Justice Murphy at 9.30am on 30 January 2009 in the Brisbane Registry of the Family Court of Australia.
The hearing listed for 9.30 on 24 November 2008 be vacated.
The Response to an Application in a Case filed by the mother on 17 September 2008 be dismissed.

IT IS ORDERED UNTIL FURTHER ORDER THAT

The Consent Orders of 11 April 2008 remain in place.
The mother do all things necessary to return the child C (male) born … January 1994 (“the child”) to the W Contact Centre at 9.30am on Saturday 20 September 2008, and thereafter to be collected by the father at the conclusion of the mother’s supervised time thereat, at 11.45am.
In default of the mother so delivering the child, upon the father filing an affidavit deposing to the fact that the child has not been returned in accordance with this order, a recovery order issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.
Such persons are authorised and directed to find and recover the child C (male) born … January 1994 and for that purpose, with such assistance as they require to stop and search any vehicle vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the child may be found.
The child is to be delivered to the father Mr Whitman, N Street, W, in the State of Queensland or to such other address as agreed to between the person executing the Recovery Order and the Applicant.
The Recovery order remains in force for a period of twelve months.
In the event that the child removes himself to the mother’s residence again, the mother forthwith:
a)inform the father orally and in writing of the child’s whereabouts;
b)forthwith make arrangements, in conjunction with the father for the return of the child to the father’s care.
As soon as reasonably practicable following the return of the child to the father’s care, the father take all necessary steps to recommence the child’s counselling with Ms P, psychologist.
The father inform the Independent Children's Lawyer of all counselling sessions between the child and Ms P.
The costs of today be reserved to the final hearing of the matter.

IT IS NOTED THAT the mother intends seeking an order that Mr M be replaced as the Family Report writer in this matter and that order is opposed.

IN RESPECT THEREOF IT IS DIRECTED THAT

The parties email their written submission to the Associate of Justice Murphy as follows: …@familycourt.gov.au with:
a)The mother to forward such submissions by 4.00pm on 29 September 2008;
b)The father and the Independent Children's Lawyer to forward such submissions by 4.00pm on 6 October 2008.
By 4.00pm on 9 October 2008, Counsel and the Independent Children's Lawyer will confer and advise the Associate to Justice Murphy by joint email whether any party requires to supplement their written submission with oral submission.
By 4.00pm on 13 October 2008, the Associate to Justice Murphy will advise all parties, in the event that all three parties do not require oral supplementation of these written submissions, whether Justice Murphy has any issues arising from the written submissions in respect of which an appearance is required.
In the event that oral supplementation is required by any party or Justice Murphy, such hearing shall occur at 8.45am on 15 October 2008 in the Brisbane Registry of the Family Court of Australia but should such hearing be required that date will be vacated by consent.

IT IS FURTHER DIRECTED THAT in respect of the final hearing contemplated at Order 1 (one):

The legal representatives of the parties confer as soon as reasonably practicable with a view to agreeing all of the directions required to properly ready the matter for final hearing.
The parties consequently file, in a form capable of being sealed by the Court, consent directions facilitating the matter being ready in every respect for final hearing, and such directions will, if considered appropriate, be made in chambers.
In the event that consent directions are not filed within 28 days of the date of these Orders, the matter be listed before a Registrar as soon as practicable thereafter on a date to be advised for the making of directions for final hearing.
Consequent upon the making of directions, the parties shall file a certificate of compliance signed by the parties and the legal representatives (if any) who it is intended will conduct the final hearing of the matter on behalf of the parties, stating:
a)that all directions have been complied with (or that specified directions are agreed to be no longer necessary) for the matter to proceed to trial;
b)an estimate of the length of hearing of the matter, certified as an accurate estimate by the legal representatives who it is intended will conduct the final hearing of the matter, and
c)that the matter is in all respects ready for final hearing.
and such certificate of compliance shall be filed on or before 4.00pm 16 January 2008, or, should trial directions be made by a Registrar, on such other date nominated by the Registrar.
In the event that no certificate of compliance is filed by the said date, the callover listing on 30 January 2009 will be vacated and the matter be forthwith listed before a Registrar for a compliance hearing so as to facilitate the filing of a certificate of compliance on a later specified date, and upon compliance, the matter be thereafter listed to the next available callover to be conducted by Justice Murphy.
In the event that a Registrar certifies that a compliance certificate cannot be filed or should a Registrar consider, despite the filing of the Certificate of Compliance, that the matter is in fact not ready for final hearing:
a)the Registrar shall immediately advise Justice Murphy and the parties of that fact and the reasons founding that opinion;
b)the Registrar shall attempt to assist the parties in effecting compliance;
c)if, in the opinion of the Registrar, the matter cannot be readied for final hearing to allow it to be set down for the said callover date, the matter shall be de-listed from that callover with liberty to either party to list the matter before Justice Murphy at a time and date to be advised in which event the parties shall be fully prepared to address any questions arising pursuant to s117 of the Family Law Act 1975 (Cth).

IT IS FURTHER ORDERED THAT

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 Whitman & Burr is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC6170/2007

MR WHITMAN

Applicant

And

MS BURR

Respondent

Ex Tempore

REASONS FOR JUDGMENT

This matter came on before me by way of an urgent hearing on the application of the father for a recovery order together with consequential orders.
The mother has, in effect, cross-applied for orders confirming an arrangement that has resulted from the older child of the relationship, C, born in January 1994 now aged 14 years and nine months coming into her care on or about 5 September this year.
The mother's proposal is that the existing arrangement should continue. As a result, C would be separated from his sister, the other child the subject of these proceedings, D born in December 1997 now aged 10 years and nine months.
That proposal by the mother would also see, as a consequence of orders previously made by this Court, and the separation of C and D, the mother seeing D for two hours supervised once a fortnight. Her proposal would also see C live in a household constituted by the mother and her current partner, Mr H.
By reason of orders previously made by Baumann FM on 21 November 2007 the children had been placed in the continuous care of the father from the conclusion of school on that day. The Federal Magistrate also made orders that the mother spend no time with the children either physically or by telephone until further order.
Significantly as it seems to me, the father was restrained from bringing the children into contact with Mr H. The effect of the orders otherwise made by the Federal Magistrate was of course that the children would otherwise have no contact with Mr H.
The current proposal by the mother also includes an order that contact between C and his father occur as agreed but in accordance with C’s wishes.
That is, her proposal contains no specific proposal as to the time that C should spend with his father and, in that respect, the mother relies on a letter purportedly written by C which became Exhibit M1 in the proceedings and in respect of which, it should be noted, C’s views with respect to his father are wholly negative.
Accordingly it seems clear on the mother's proposal that, at least in the short term, the practical reality is that there is likely to be very little time, if any, spent between C and his father.
Given that, as appears to be uncontentious in the proceedings before me, the mother had been the children's primary pre-separation carer, the order by Baumann FM that the children come into the continuous care of the father and spend no time with their mother must, one would have thought, have had a significant context.
That context is perhaps primarily explained by a report from Mr M, a consultant social worker, annexed to an affidavit him filed on 2 July 2008. That report was, it seems, before Baumann FM.
It should be noted that, even then, C was apparently saying negative things about his father to Mr M. An example is contained in pars 73 and following of Mr M’s report.
It is also clear from Mr M’s report that C has been subjected to negative comments about his father from his mother. For example, at par 78 of Mr M’s report records C saying that "his mother has since told him that his father would rape her" and also that:
The only reason that [the father] would give us presents was in the hope that he would score something later that night and so he really didn't care much for us kids". His mother told him "how depressed she was having those things done to her". He believed her "because she seemed quite serious about it". His mother also told him that his father had "said to mum that he was going to kick her and us kids into the street and he wanted to keep the house all to himself.
Mr H was clearly the subject of significant concern to the Court at the time orders were made by Baumann FM. Again, the report of Mr M was clearly important in that respect.
About Mr H, Mr M says at par 30:
Mr [H] spoke in a dominant, loud and insistent fashion. When interviewed with [the mother] he did a lot of the talking, pressing his view ardently such that they competed to say as much as possible in as short a time as possible. He is completely negative about [the father], voicing this vociferously and in a completely unedited fashion.
Mr M records Mr H saying, "they know I don't like their father, it is probably what C overhears … he could have overheard my general feelings towards him, I probably said quite a lot of things".
At par 110 of his report Mr M says:
Mr [H] is a malign influence with the children and it is partly due to the combination of his personality and the sway of his influence that the situation has developed in such an extreme manner. He has a seemingly endless display of vitriol and this is extended to schooling the children in ways to resist the temptation to go with their father and therefore to avoid complying with the orders of the Court.
Ultimately Mr M posed for consideration by the Court, three options and made a recommendation with respect to one of those options. In respect of those options and the ultimate recommendation Mr M said:
in all options it is my view that Mr [H] should never have further contact with these children.
The report of Mr M obviously enough addressed the mother and her attitudes toward the father, that being one of the matters which any Court must take into account pursuant to s 60CC of the Act.
At par 101 Mr M said:
[The mother] presented in a histrionic and highly emotive fashion for these interviews. This appears to be generally consistent with her actions which demonstrate a trail of impulsive and erratic decisions, actions and views more closely based on her own imagination or scurrilous story telling than any basis in fact.
At par 109 Mr M said:
[The mother] has interviewed her daughter with the intention of proving abuse and it is my view that she has done so in a purely maligned fashion. It is difficult to know whether she believes her own lies at this stage, however I think that [D] has come to believe them and is still subject to pressure to disclose any information that would discourage her father regardless of its veracity.
Ultimately Mr M said:
It is my view that [the mother] (with the help of Mr [H]) has methodically and consciously defiled the bond between the father and the children through the supply of concocted information to both, exacerbated by trumped-up claims of sexual abuse. The means by which they have sought to influence the children are endless including such things as telling the children that their father is a rapist, a liar and a paedophile. All of these allegations have been thoroughly investigated by the police and found to be wholly unsubstantiated.
During the course of argument I indicated to Mr Pieterse, counsel for the father, that I had some concerns about report writers expressing views that might properly be seen as findings of fact.
As I said to Counsel, although circumstances can mean that the distinction is frequently far from clear or blurred, nevertheless it seems to me that conclusions of fact, about matters such as the veracity of an account are, generally speaking, to be avoided.
Mr M, of course, has not given oral evidence, nor had the opportunity to be cross-examined and it may be that, ultimately, a Court would agree with those factual conclusions. However, that is a matter for another day and more particularly a matter for cross-examination, argument and findings at a trial.
Nevertheless, in the context of interim proceedings, and bearing in mind Division 12A of the Act, it seems to me I can take account of the fact that, at the time Baumann FM made orders, an experienced social worker and report writer in this Court was prepared to make statements of the type that I have just indicated.
It seems to me that I am entitled to take those statements into account, irrespective of their factual veracity, as statements indicative of a serious and genuine concern that a report writer held with respect to both the mother's attitude towards the father and in particular, the influence of Mr H on the children.
Subsequent to the orders made by Baumann FM the parties attended upon Dr N who is a consultant psychiatrist.
Dr N prepared a report which was filed annexed to an affidavit by him on 4 April 2008. Again, the opinions expressed by Dr N are in my view an important part of the context in which this current application is to be determined.
Again, that report refers to Mr H in terms which should in my view give rise to significant concern on an interim basis before ultimate findings can be made about him and, in particular, his influence on the children if he is to be part of their day-to-day lives.
For example, Dr N records Mr H openly telling him that he "threatened (the father) on the phone a couple of times". Further, it seems clear that Dr N too was of the view that C’s and D’s statements are likely to have been the subject of adult influence.
The doctor says, at p 28 of his report:
It seemed to me that the children's statements at times appeared to have the potential to have been influenced by adults. This is clearly impossible to prove but it was my opinion that I noted contemporaneously during the interviews and prior to reading any of the collateral material including the family report. Following reading the collateral material the impression that Mr [H] and [the mother] have either jointly or separately tried to influence the children against the father is stronger.
In respect of the mother, Dr N says:
[The mother] probably met criteria for an adjustment disorder with depressed mood and possible for a major depressive episode. It also seemed most likely that she had an enmeshed relationship with [C] where she had difficulty setting limits upon him and would acquiesce to his wishes regardless of whether his wishes were in fact in his best interests.
I interpose, that this opinion, in my view, is extremely important in the context of the submissions made on behalf of the mother by Mr Curran, counsel who appears for her, and in the context of the decision I have to make in respect of the current application.
Dr N goes on to say:
It is most concerning that (the mother) has involved [C] in her life events to the extent of telling him about her allegations of rape towards his father and also describing to him her desire at times to kill herself and the fact that Mr [H] was there to prevent her from doing this. It does not appear to me that she has a full understanding of the emotional impact this may have on [C] or the extent to which he might feel a desire to be with her in order to protect her from these things. Her history, particularly with regard to the marriage and the allegations of abuse, appeared to be inconsistent with her recorded behaviour in some areas, that is, for example, her statement she had never trusted [the father] with [D], did not concur with her previous behaviour prior to the allegations being made. It is not clear whether her version of the timing of her relationship with Mr [H] is true or whether his version of the police statement is true.
Dr N concludes, at par 29 of the report, as follows:
Nevertheless I would recommend that the mother have contact with the children. I would suggest that contact be monitored so that the content of the contact is not able to be further emotionally abusive towards the children. I would therefore recommend that such contact initially be supervised and that it occur on a gradually increasing scale. I would not recommend that contact be unsupervised for some months at least.
Subsequent to the report from Dr N, an order was made, on 11 April 2008. It is significant to note that this order was made by consent.
At that time the mother was represented by counsel and the father by a solicitor. The same Independent Children's Lawyer, Ms Chan, who appears before me today also appeared on that occasion.

On that day the mother gave undertakings that:
until further order or excused from this undertaking -
i)To ensure to the best of my ability that my children … shall not come into contact with Mr [H], and
ii)That I shall not pass on to my children any communication from Mr [H].
Furthermore, Mr H apparently gave an undertaking as follows:
until further order or excused from this undertaking that I shall not contact or make any attempt to communicate either directly or indirectly through third persons with either of the children …
In addition it was ordered by consent that par 3 of the orders of Baumann FM be discharged and that the mother have no telephone communication with either of the children but would spend time with the children supervised at the W contact centre on either a Saturday or Sunday for up to two hours each fortnight.
The father agreed (par 4) to ensure that the children attended counselling as arranged by the Independent Children's Lawyer. It is as a result of that order that the children came into contact with the counsellor Ms P.
As a result of that order the children lived with their father and had no face-to-face time with their mother other than supervised time and that time was to occur at a contact centre, closely monitored, for up to two hours each fortnight.
Mr Curran tells me, and it does not appear to be in dispute, that despite that order being made on 11 April 2008, the Order, as a result of the need to make necessary arrangements, did not come into effect until early July 2008.
Accordingly, it should be observed that the mother spent no time with the children from approximately November 2007 until about July 2008.
Furthermore, as Mr Curran seeks to emphasise in submissions, such time as the mother spent with the children was closely monitored by the supervisors at the contact centre event to the extent of paying attention to what the mother said or did not say to the children.
In that respect there is before me, as Exhibit ICL1, a letter which is addressed to Ms McArdle at the Legal Aid Office in respect of that supervised time. Mr Curran submits that it speaks in glowing terms of the inter-relationship between the mother and the children during that supervised time.
In May of 2008, as a result of the order previously referred to, the children commenced counselling with Ms P. A short report from Ms P is in evidence as Exhibit KAW4 to the affidavit filed by the father in these proceedings.
That report dated 21 August 2008, somewhat significantly as it seems to me (bearing in mind of course the fact that Ms P has not deposed to these matters and has not been cross-examined) says as follows:
To date [C] has attended six appointments and [D] has attended four appointments. The children appear to have adjusted well to their placement with their father and are not exhibiting any emotional or behavioural disturbance. Based on this a decision has been made to discontinue counselling. I do not assess a need for further treatment at this time. This decision has been discussed with [the father].
After submissions and a decision by me, a letter purportedly written by C to the Independent Children's Lawyer was admitted into evidence and is Exhibit M1 in the proceedings before me.
With specific reference to the counselling just referred to (and it might be thought, perhaps, in contrast to what the counsellor has to say about the need for the sessions) the child purportedly says -
When I ran away and the police brought me home did you know that [the father] kept me up until after 11 pm following me around the house yelling at me for days and that his punishment for it was to starve me not just missing one meal but days' worth. Mum and [Mr H] have never done anything wrong to us. You and the stupid bloody counsellor believe whatever [the father] said and now that [D] has seen what the counsellor said about her being a liar she won't talk to anyone any more. She doesn't trust anyone, neither do I.
Subsequently, in the first week of September, C presented himself to his mother's place and has said to her that he does not want to return to his father's place.
As mentioned earlier, Mr H was an ordinary member of the mother's household at that time. There was a relatively short period of time when Mr H, C and the mother were together but the mother deposes to the fact that, by reason of the undertaking earlier referred to, Mr H absented himself from the property not long thereafter.
The letter just referred to is a document pregnant with issues highly likely to be the subject of further investigation at the trial.
Moreover its contents are, it seems to me, highly likely to be relevant to further assessments which I will order be undertaken by Mr M and Dr N ahead of a final hearing, which is likely to take place in approximately late February or March 2009.
For present purposes, in circumstances where it is not possible for me to make any factual findings in respect of matters which are, or are likely to be, highly contentious, it seems to me that, I should confine my use of that letter to it indicating, first, a wholly negative attitude by C towards his father; secondly, a series of allegations about his father's lack of care of him including what might be interpreted as neglect, for example, starving him "not just missing one meal but days' worth".
Thirdly, the letter is, on its face, wholly positive about the mother and Mr H. Next, the letter expresses a strong desire on C’s part to live with his mother and, at least implicitly, Mr H so much so that he says at the conclusion of it "my sister and I just want to go home. Is that too hard for you to see if we are keep here much longer we won't stay, we both will run away".
The fact that a 14 and a half year old child is saying those things, even expressed as broadly as I have expressed them, even absent final findings, is, in light of the material presented by Dr N and Mr M, troubling.
In arriving at a decision in these current proceedings I am, of course, aware of what the Act has to say about the application of the Objects and Principles and the mandatory requirements for assessing best interests set out in s 60CC of the Act including the delineation of Primary Considerations and Additional Considerations.
I am also cognisant of what the Full Court had to say in Goode v Goode. In particular, I note that the Full Court held that earlier decisions of this Court relating to the nature of the proceedings conducted on an interim basis in parenting cases remain good law after the introduction of the Family Law Reform Act 2007.
Accordingly, these proceedings are conducted on a truncated basis without cross-examination and factual findings should be made only on the basis of clear evidence, non‑contentious facts and matters about which there could not seriously be an issue.
Furthermore, the Full Court held that, despite the fact that those strictures apply and the proceedings are being conducted on an interim basis, nevertheless the statutory Considerations, Objects and Principles apply equally to the enquiry conducted by a Court on an interim basis.
I have also taken account of, in a general way, the provisions of Division 12A of the Act and, in particular, the principles enunciated within that division for the hearing of cases by this Court where applications for parenting orders are made.
Consistent with the overall requirement on the Court, which remains to arrive at orders which the Court considers are in the best interests of the children, Division 12A, described very broadly requires the Court to place children and their best interests at the forefront of the procedural and evidential aspects, as well as the substance, of the proceedings before the Court.
Mr Curran argues that the reports prepared by Mr M and Dr N are all based on information which essentially pre-dates November 2007 or, perhaps more accurately, based on information about the inter-relationship of the parties and the children which pre-dates November 2007.
He submits that, since the time that those interviews took place and the reports prepared, a significant thing has occurred, that is, that the children, and in particular C, have only seen their mother in a very restrictive environment where essentially everything said by the children to their mother is monitored.
He points out, correctly as it seems to me, that no issues about anything said by the mother to C arise from the report of the supervisors which is Exhibit ICL1 in these proceedings. He points to the fact that the time between the mother and C only commenced in about July and there was therefore a very short period of time between the commencement of that time and C running away.
He submits further that this 14 and a half year old or I think as Mr Curran put it, a boy who is almost 15, has had the experience of living with his father between November 2007 and September 2008 and has voted with his feet. This, he submits, is a very significant matter and a very clear indication, not only of his views but of his best interests.
Mr Curran concedes that, given the background of this case to which I have made reference, it is highly likely that the reports earlier referred to will need to be updated. Indeed, that seems to follow from the central submission he made because that centres on the fact that there is new information directly relevant to the best interests of the children and C in particular, that each of those experts should know about and provide opinions on.
Mr Curran also points to the fact that, as seems uncontentious, the mother was the children's pre-separation primary carer and the expression by C in Exhibit M1 that "my sister and I just want to go home" is significant and understandable in light of the fact of the mother's pre-existing primary caring role.
Mr Curran also points to the fact that the allegations of what might be described as neglect by C made against his father received some corroboration (albeit that Mr Curran concedes, as I understand it, in a limited way) from the report which is Exhibit ICL1 which refers to the children in winter arriving in summer clothing.
In essence it seems to me that the submission of Mr Curran is this: here is a boy who is almost 15, he has been primarily cared for by his mother. He has had the opportunity pursuant to Court orders to be excluded from his mother's care for a period of time, and during that period of time to have experienced day‑to‑day care by his father with his sister, and, having experienced that, he has made a mature decision that it is in his best interests that he should live with his mother and as it happens, Mr H. He says, in effect, that those wishes, put into practice in the way to which I have referred, should be given both weight and respected by this Court and when a child is of that age that the Court should pay particular attention to what that child has to say.
The Act clearly requires me to take into account C’s views. Indeed there can be little doubt, when reference is had to s 60CC itself and also to, for example, Division 12A in its entirety, that that is a clear intention of the legislation.
Section 60CC, at 3(a) in particular, requires me to take into account "any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views".
As I said during the course of argument, the pre-November 2007 and post-November 2007 circumstances cannot be as neatly compartmentalised or encapsulated as what Mr Curran would argue.
I particularly have in mind the statement by Dr N to which I have made reference that the mother has "an enmeshed relationship with [C] where she had difficulty setting limits upon him and would acquiesce to his wishes regardless of whether his wishes were in fact in his best interests".
Simply because a child, even a child of this age, is not told things by his mother during a period of time, if, in fact, there is preceding that time, 13 plus years of an enmeshed relationship, things do not necessarily need to be said for the child to express precisely the sorts of attitudes and manifest exactly the sort of issues that were alive when the children saw both Mr M and Dr N.
The proposal by the mother, while seeking to emphasise the importance, understandably, of s 60CC3(a), pays less regard to matters which, in my view, are equally as important and which I am equally mandated to take into account.
For example, I have to take into account the nature of the relationship of the child with both of his parents. I have already referred to that and, in particular, to the opinion of Dr N which I regard as being very important in that respect.
Secondly, I have to take into account a number of other important factors. On the mother's proposal the child will be in day-to-day contact with Mr H. The mother does not put forward a proposal, for whatever reason, that Mr H, during the interim period between now and trial, should absent himself from the household, much less from the children's lives during that period.
I must assess the mother's interim proposal against the evidence that I have before me with respect to Mr H. That evidence untested though it is either by cross-examination of him or cross-examination of Mr M or Dr N, is, in my view, disturbing and compelling.
I reiterate the opinions each expressed. I note both Mr M and Dr N, each saw Mr H, the latter of whom saw him and assessed him on a psychiatric basis. It seems to me that I should be profoundly troubled by any proposal which would seek to have Mr H playing a significant role in the children's lives.
Next, the Act requires me to take into account the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
Thus far, whatever might be the father's attitude towards the children spending time with their mother, that time has occurred in accordance with what the Court has determined in the first instance and, subsequently, what the parties have agreed is in the children's best interests by way of supervision at the W contact centre.
The proposal by the mother which is, in terms, that the time C spends with his father should be as agreed but in accordance with C’s wishes, seems, on any view of the evidence which she herself presents to the Court (and in particular the purported letter by C which she herself sought to make evidence before me) to be nothing more than a pipe dream.
The only clear inference that arises from that letter is that if C resides with his mother it is highly unlikely that he will spend any time, let alone any meaningful time, with is father between now and the trial. Certainly the mother makes no specific proposal in respect of that time.
Next I am obliged to take into account the likely effect of any change in the children's circumstances. It is a matter of considerable significance that the proposal of the mother would see C living with her and be separated from his sibling.
The history of this matter, at least as I understand it, indicates that, whilst the mother was the pre-separation primary carer, both children lived together. Subsequent to separation, despite the conflict and other matters referred to in the evidence earlier by me, C and his sister have resided together with the father and that that has continued to be the case since April 2008 pursuant to consent arrangements made between the parties.
The mother's proposal would be to bring about a change to that. I see no evidence in her affidavit, nor, indeed are any submissions made to me, that indicates that the separation of the siblings is in either of their best interests, let alone C’s best interests.
In light of the highly charged circumstances existing between these two parties, and all of the matters raised in the reports to which I have made reference, the preservation of the sibship between C and D, and, in particular, the two of them spending time together, is a matter I should regard as being particularly important and I do.
It is by no means clear on the mother's proposal whether in fact there would be any time at all that D and C would spend together.
Certainly her proposal indicates that D should continue living with her father and that her time with D should be in accordance with the current order which would see her spending supervised time with D at the W contact centre once a fortnight.
Whilst it might be in the mother's mind that C should also attend on those occasions, it has by no means been made clear in respect of any proposal by her that that is the case.
Next I have to consider, albeit on an interim basis, the capacity of each of the children's parents and any other person, to provide for the needs of the children, including emotional and intellectual needs. By reason of what I have already said I have profound concerns about the capacity of Mr H to provide for the needs of C including, in particular, his emotional and intellectual needs.
I also have some concerns about the capacity of the mother, based on what I have read, however it seems to me that Mr Curran is right when he says that those reports are somewhat historical and it might be that further information provided to each of the report writers ahead of the trial might caveat some of the opinions earlier expressed.
I have in mind the other provisions of s 60CC which I need to take into account and have considered those provisions. In focusing on the specific matters which I have, it should not be thought that I have ignored the primary considerations which I have to take into account.
In terms of each of those primary considerations the benefit to C of having a meaningful relationship with each of his parents is of course subject to those matters of significant concern that have preceded these proceedings and which are again live to a certain extent in the interim proceedings before me and which will undoubtedly be live at any trial.
Similarly, although there are allegations by the mother of abuse by the father, it seems there is a persistence with allegations of sexual abuse (although that is not entirely clear), allegations of physical abuse and if Exhibit M1 is to be accepted by her as it seems to be, then presumably allegations of neglect as well.
So, too, it seems that, at least implicit in the father's material, there is an allegation of emotional abuse of the children by the mother and Mr H resulting from what he alleges would be the enmeshment of the children in adult affairs and things said by each of the mother and Mr H to the children.
I have not made specific reference to those primary considerations because, in the context of these Reasons, it seems to me that the factual foundations that might be relevant to a proper consideration of each of those primary considerations are clearly a matter for exploration at trial and are beyond the scope of these interim proceedings where no factual findings can be made.
In a similar way I have taken into account the Objects and Principles of Part VII in arriving at the decision which I have.
Ultimately my decision is that between now and the trial which is due to take place in February or March, the arrangements existing pursuant to the orders made by consent in April of 2008 should remain.
In my view, based on all of the material that I have read, and having listened carefully to the submissions made by each of the parties and the Independent Children's Lawyer that, it seems to me, is in the children's best interests.
I should say in that latter respect that views expressed by a child, even a mature child, are not the same thing as a child's best interests.
As I said to Mr Curran during the course of the hearing, it seems to me that a central component of the submissions made by him is that, in effect, I should be persuaded that C, by reason of expressing the views that he has, is better placed to express his best interests than the totality of all of the material before me, including that to which I have referred.

Whilst it is entirely appropriate that the Court should pay regard to, indeed significant regard to, the views expressed by a mature child, I note what Dr N, in particular, said about C when he saw him. Ultimately, even taking account of those expressed views, it is a matter for me to determine, by reference to all of the other considerations that are relevant to that determination, whether it is in that child's best interests to live with his mother as he apparently says he wishes to do (at least to her).
I have concluded that it is not. I have concluded that between now and the trial of this matter the arrangements existing pursuant to orders made by consent on 11 April 2008 should remain in place.
For those reasons I will make these orders.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 27 October 2008

[2008] FamCA 898

19 September 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Costs

Injunction

Remedies

Jurisdiction