Whitman and Burr (No 3)

[2009] FamCA 1088

FAMILY COURT OF AUSTRALIA

WHITMAN & BURR (NO. 3) [2009] FamCA 1088

FAMILY LAW – CHILDREN – Best Interests of the child – Parenting orders – Proceedings in a State Court – Approval of publication of Court material and Reasons – s 121 Family Law Act 1975 (Cth) – Re-appointment of Independent Children's Lawyer

Children Youth and Families Act 2005 (Vic)
Family Law Act 1975 (Cth)

Re K (1994) FLC 92-461

APPLICANT: Mr Whitman

RESPONDENT: Ms Burr

FILE NUMBER: BRC 6170 of 2007

DATE DELIVERED: 3 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 3 November 2009

REPRESENTATION

THE APPLICANT: Appeared on his own behalf

THE RESPONDENT: Appeared on her own behalf

Orders

1. The Response filed by the mother on 2 November 2009 is dismissed.

2. To the extent that the exception provided for in Section 121(9)(g) of the Family Law Act 1975 or the other provisions of that subsection do not otherwise authorise same, the father shall have leave to publish an account of the proceedings in BRC6170/2007, including:

   a.affidavits filed by any expert witness in those proceedings, either of the parties or any of their witnesses in those proceedings;

   b.each and all orders of the court and sets of reasons delivered by the court in support of those orders;

   c.any documents otherwise forming part of the evidence in any such proceedings

   and that such leave to publish be approved to:

   i)The Department of Human Services, Victoria and any of its authorised officers;

   ii)Ms E, psychologist and any other psychologist, counsellor or other professional engaged either by the father and/or the Department of Human Services, Victoria in or about the current position of the child C born … January 1994;

   iii)The Children’s Court of Victoria and the officers of that court;

   iv)Any legal representative of the father acting on his behalf in respect of proceedings due to take place in the State of Victoria relating to the child C.

   v)The Department of Communities (Child Safety Services) Queensland, and any authorised officers of that Department;

   vi)Any officer of the Queensland or Victorian Police, or the Australian Federal Police, charged with the responsibility of investigating any assertions or allegations made in respect of the child C.

3. Paragraphs 7 and 8 of the father’s Application in a Case filed on 28 October 2009 are dismissed.

4. The mother serve a copy of her Initiating Application, filed in this Court on 22 October 2009, on the Director, Department of Human Services, Victoria.

IT IS FURTHER ORDERED THAT

1. The interests, in these proceedings, of the children, C born … January 1994 and C born … December 1997 be independently represented by a lawyer and it is requested that Legal Aid Queensland arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Brisbane.

IT IS RESPECTFULLY REQUESTED THAT

1. The Director, Legal Aid Queensland, reappoint Ms Chan, who was the Independent Children's Lawyer previously in this matter and that in the absence of her availability, it is requested that an experienced Independent Children's Lawyer be appointed in her stead.

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: BRC 6170 of 2007

MR WHITMAN

Applicant Father

And

MS BURR

Respondent Mother

EX TEMPORE

REASONS FOR JUDGMENT

1. This is the fourth set of reasons I have delivered in this matter that was, initially, at least, an application for parenting orders in respect of two children, C, born in January 1994 and D, born in December 1997.  It will be seen that C is turning 16 in about two months time, and that D is almost 12.

2. The father, who represents himself, brings an application in a case which seeks the following orders:

   (1)The applicant be authorised to publish and provide copies of all reports, orders and reasons to the Department of Human Services [a reference to a Victorian Department];

   (2)The applicant be authorised to publish and provide copies of all reports, orders and reasons to [Ms E], psychologist, and any other person who will be called to give evidence in the Children’s Court of Victoria;

   (3)The applicant be authorised to publish all reports, orders and reasons to the Children’s Court of Victoria, and to permit my counsel/solicitor to refer to and produce such in the Children’s Court of Victoria;

   (4)The applicant be authorised to publish and provide copies of any sealed affidavits filed in the Family Court for Family Court proceeding, to the Department of Human Services;

   (5)The applicant be authorised to publish and provide copies of any sealed affidavits filed in the Family Court proceedings to the Children’s Court of Victoria;

   (6)The applicant be authorised to publish and provide copies of all reports, orders and reasons to any member of any Australian police force, and any member of any child protection agency, from time-to-time, in connection with any matter concerning any or all of [the named children];

   (7)The mother or any agent or person acting through her direction, request or with her permission, is prohibited from removing [the named children] from the district of [W] in the State of Queensland;

   (8)The mother or any agent or person acting through her direction, request or with her permission, is prohibited from making or consenting to the making of any complaint, notification or application about [the named children] to or by any child protection agency or police force, without the leave of the Family Court.

3. By her response filed on 2 November 2009, the mother seeks the following orders:

   (1)All sealed documents remain sealed;

   (2)[C] have the warrant for his return overturned;

   (3)[the father] be restrained from making baseless allegations and the use of “I believe” within his affidavits;

   (4)[the father] be forced to allow people mentioned within his affidavits the right of reply by naming them as respondents on said affidavits.

4. On 31 March 2009, I made a number of parenting orders consequent upon a trial that proceeded over three days before me, on 10, 11 and 12 March 2009.  In simple terms, those orders provided for the father to have sole parental responsibility in respect of the children, and for each of the children to live with their father. 

5. Time between the children and their mother was somewhat restricted, but graduated in its frequency and nature over a period of time specified in the orders.  Similarly, communication between the mother and the children was restricted in accordance with specifications contained in the orders.

6. At paragraph 11 of those orders, I made an order in these terms:

   The independent children’s lawyer shall provide a copy of the reasons for judgment in this matter to:

   (a)Ms [P] [the children’s counsellor], and such other counsellor whom she might recommend;  and

   (b)The director of the [W] Contact Centre or such other contact centre or individual supervisor appointed by them, for agreed in accordance with these orders, and the publication of same to those individuals is approved pursuant to section 121(9)(g) of the Family Law Act 1975, but no other publication of the reasons or any other account of the proceedings by the parties is approved. [emphasis added]

7. The last paragraph of the orders can be seen to form the foundation for the orders sought now by the father. 

8. Those earlier orders were accompanied by reasons for judgment that extended over some 40 pages.  Those reasons dealt comprehensively with evidence from a number of expert witnesses, including Mr M, a social worker experienced in providing reports to this court, and in child protection generally; Dr N, a consultant psychiatrist, well experienced in this court; and Ms P (the children’s counsellor). 

9. Furthermore, those reasons made reference to significant involvement by the Queensland Department of Child Safety, and to conclusions reached by that Department as a result of investigations undertaken by it.

10. It is significant to note, in the current context, that those reasons also comprehensively analysed C’s views (a matter which the Family Law Act requires to be taken into account). A number of findings were about those views. 

11. Similarly, those reasons dealt comprehensively with what might be seen to be the catalysts for those views, and for behaviour exhibited by C in running away from his father’s care – earlier episodes of which were a matter also specifically dealt with in those reasons.

12. Within six months of the making of those orders, C had removed himself from his father’s care. 

13. The facts and circumstances surrounding that event formed the basis of a recovery order made by me on 16 September 2009.  I also delivered reasons for judgment on that occasion.  In those reasons, I pointed out that the mother told me that C had, somehow, absented himself from Queensland, and had, somehow found his way to rural Victoria. 

14. The mother alleged that this occurred without assistance and of his own volition.

15. The submissions made by the mother at the hearing of the application by the father for a recovery order (which were dealt with by telephone at a time when I was sitting in the Sydney Registry), exhibited plainly and without doubt that the mother continues to refuse to accept the decision of this court, and continues to maintain the case that she maintained at the trial before me.

16. The mother informed me on that occasion that C was currently living with her mother in central Victoria, some distance from Melbourne. I said in those reasons:

    How [C] got there is, according to the mother, a mystery.  The mother says that [C] is safe there, and that her mother is prepared to care for him and that he does not wish to return.

    The circumstances just described might, given that [C] is now 15 ½, give rise to questions about why this court would seek to intervene.

    The answer is to be found in the complex and unattractive circumstances pertaining to [C’s] post separation co-parenting, which I outlined in some detail in my reasons for judgment given on 10 March 2009. 

17. The current application, then, has those facts and circumstances as an important part of its background. 

18. The affidavit of the father filed in support of the instant application deposes to the fact that an order was made in the Children’s Court in Victoria, pursuant to State legislation, namely, the Children Youth and Families Act 2005.  The order, referred to as an “Interim Accommodation Order” is exhibited to the affidavit. 

19. The order, on its face, indicates that C is:

    Placed on an interim accommodation order” and “is to be placed with [Mrs Burr Snr], maternal grandmother [at a specified address] who is a suitable person, pending the hearing or resumption on the entering into (whether orally or in writing) by that person or those persons, of an undertaking to produce the child before the court for the hearing, or the resumption of the hearing of the relevant proceeding.

20. That affidavit also exhibits a document entitled “Confidential Court Report” from the Department of Human Services, in that State.  Among other things, that document refers to C having “absconded and hitchhiked from Queensland to Victoria with a truck driver” arriving in regional Victoria on 14 September 2009. 

21. That report also refers to C “continuing to refuse to have any contact with his father. Child protection workers have encouraged contact with his father and have offered to supervise phone access, however, [C] continues to refuse”.

22. The document also refers to what might broadly be described as a process of assessment and investigation that refers specifically, for example, to C’s appointments with a psychologist, Ms E, occurring, it seems, on 1 and 7 October 2009.

23. It is interesting to observe, in light of the findings made by me after a three day trial and my reference, in the reasons resulting therefrom, to a unanimity of views between a reporting social worker, a reporting child psychiatrist, the children’s counsellors and some suggestions in the Queensland Departmental file, that C’s perception of his father was “wholly negative”. 

24. Ms E’s report (at least as summarised in the document earlier referred to) says “[C’s] perception of his parents was quite polarised, where he was critical of his father and idealised his mother in a manner that may possibly be inaccurate on some levels.”

25. It is, I think, important to observe that the orders made by this court after a three day trial were based on a number of specific findings expressly set out in the reasons at paragraph 67.  They bear repeating in this context, and are as follows:

    (1)[D] is not at risk of sexual harm in the care of her father;

    (2)[C] is not at risk of physical harm in the care of his father;

    (3)[The children[ are at a slight risk of emotional harm in the care of their father by reason of a somewhat compromised capacity on his part (and on the part of his father) to isolate the children from adult issues, but I accept the tenor of the children’s statements to Mr [M].  During the course of proceedings in this court, I consider that his capacity in that regard has significantly improved;

    (4)[The children] are at a very high risk of emotional harm in the care of their mother by reason of what I find is likely a continuing enmeshed relationship between she and the children (and [C] in particular);  an incapacity to isolate the children (and [C] in particular) from issues relating to her emotional and psychological health (and particularly the statements by her about each), and an incapacity to isolate the children (and [C] in particular) from adult issues;

    (5)Further, both children are at a very high risk of emotional harm at the hands of their mother by reason of a continued inculcation of a belief on her part, that [D] has been the subject of sexual harm at the father’s hands, [C] the subject of physical harm, and both children the subject of emotional harm, together with her past and likely future behaviours in and about seeking to obtain “disclosures” from either child, relating to any such harm;

    (6)The children are at a very high risk of emotional harm from Mr [H] [the mother’s partner] by reason of his unrestrained expression of hatred toward one of their primary loved objects, namely, their father;  and Mr [H’s] past and likely future inculcation and encouragement of the beliefs referred to in the earlier paragraph;

    (7)Although the mother was the historical primary carer of the children, they have been in the primary care of the father for some sixteen months.  [D] is well settled in his care.  [C’s] school performance has improved during that time, and [D’s] school reports (in circumstances where, in a small school, the principal has been “keeping an eye” on her) are that there are no concerns about her presentation, demeanour or conduct;

    (8)Despite [C] running away from his father’s home on as many as five occasions (most recently in September 2008), and having written letters (copied to his mother) to the independent children’s lawyer, expressing negativity about his father and an ardent desire to return to his mother’s care, he is, in fact, well settled in his father’s home, and his relationship with his father has improved over time;

    (9)[C’s] expressed wish to live with his mother (and Mr [H]), and his expressed antipathy towards his father and his father’s care of him, should not, despite his age, be accepted at face value;

    (10)[C’s] letters and his running away from home are an expression of a troubled adolescent, significantly scarred emotionally and psychologically by his parents’ conflict, and reinforced by actions of his mother and Mr [H];

    (11)Furthermore, [C’s] actions are most likely the overt expression of a deep – and highly troubling – psychological issue, clearly identified by Dr [N];

    (12)[C] is receiving counselling, which has been significantly beneficial.  He is highly likely to need ongoing counselling into the future.  The father has, in the past, and will continue to, support such counselling;

    (13)By reason, principally, of the matters earlier enumerated, the mother has an impaired capacity to provide adequately for the totality of the children’s psychological and emotional needs;

    (14)The father’s capacity, in that respect, is somewhat impaired, but not to the extent of the mother’s.  Mr [H] has little capacity to provide for the children’s psychological or emotional needs.  So too, the involvement of the children in the parents’ conflict, the inability or unwillingness to draw boundaries around adult issues, and failure to ensure that the children are not involved in, or affected by, same, and the lack of insight into the psychological needs of the children, speak poorly of the responsibilities of parenthood exhibited by the mother and Mr [H];

    (15)The willingness and capacity of the mother to support a close and continuing relationship between the children and their father is, on her own case, dependent ultimately on decisions being reached by the children.  Whilst the mother sees this as being child-focussed, I see it as placing an intolerable burden upon the children, and ultimately, as an abrogation of adult responsibilities.  In stark contrast to facilitating a “close and continuing relationship” between the children and their father, her attitude will, as I find, potentially sow – or risk sowing – the seeds of the effective destruction of that relationship;

    (16)There is no realistic prospect that the mother’s fiancée, Mr [H], will be supportive of the children having a close and continuing relationship with their father;

    (17)The father is more likely to actively ensure that the children see their mother.  This is, I think, more likely to come from an acceptance of what is plainly their desire, rather than a sincerely motivated independent parenting stance on his part, consistent with his insight into their best interests;

    (18)Ultimately, I considered the prospects of the parents achieving, or getting close to achieving, what the children each clearly want and need (and what the Act desires) – namely, a meaningful, healthy, co-parenting relationship – are virtually non-existent;

    (19)I will make findings about supervision of time later in these reasons.

26. As will be clear from those findings, my reasons dealt specifically with the issue of C’s views; his entirely negative view of his father; the fact that he had run away on previous occasions, and many of the other matters referred to within the Victorian Department’s Notice of Assessment exhibited to the father’s affidavit.

27. Paragraphs 2, 3 and 4 of the mother’s Response before me today can be readily dealt with. 

28. Paragraph 2 is effectively in the nature of an appeal of the decision for recovery order made by me.  No appeal against that decision has been lodged.  There is no basis whatsoever, in my view, for overturning that decision, and I refuse that application. 

29. I am, of course, conscious of the fact that an order has been made under a “child welfare law” within the meaning of section 69ZK(3) of the Act. This court does not as a result have jurisdiction to make an order “in relation to a child” who is under the care of the Department by reason of such a law.

30. In my view the order for dismissal is a procedural order and is not an order “in relation to a child”.

1. In my view, the existence of an order made under State law, to which section 69ZK of the Act applies, does not warrant, per se, the removal of an earlier order made by this court. Indeed, one might think, given that the section makes it clear that orders of this court can apply upon the cessation of any State order, that the order ought remain in place unless the court is persuaded that there are good reasons for removing it.

2. Neither the affidavit of the mother, nor any other evidence before the court, remotely convinces me that there is good reason to remove that order.  Paragraph 2 of the Response is dismissed.

3. Paragraphs 3 and 4 of that Response are in somewhat unusual terms.  In my view, paragraph 3 is what might be described as a general objection to what might be hearsay. I take the admissibility of the evidence into account when arriving at my decision in this case, and it seems to me, inappropriate to make an order in terms of that sought at paragraph 3.

4. Paragraph 4 is, in my view, incompetent, and is struck out. 

5. The issue then, live in the Response to the Application in a Case, is, in effect, (as I apprehend it), an application to dismiss the application by the father for the authorisation of the publication of court documents.

6. The affidavit of the mother makes it plain, again, that she continues to seek to reagitate the issues determined both at the trial of this action, and, subsequently, the application for recovery order.

7. The affidavit by the father, on the other hand, contains many matters which might be seen as addressing the merits, or otherwise, of the decisions and/or processes of the Victorian Department of Human Services.   A consideration of those matters is, of course, entirely beyond the scope of the current proceedings, and, indeed, probably beyond the jurisdiction of this court, at least in the terms that are hinted at in that material. 

8. What is plain from the affidavit of the father is that it is intended by him to engage in proceedings in, probably, the Children’s Court in Victoria (although other courts in that State might be involved), challenging the order made under State legislation. 

9. It is said in that affidavit by the father that he considers it proper and appropriate that the court (and his legal advisors prior to that) should have access to the material canvassed in the proceedings before me, and the reasons for judgment, and other court documents, relating to the children and C in particular.

10. Leaving aside matters in the mother’s affidavit which respond to factual assertions made by the father irrelevant for present purposes, the mother deposes, in that affidavit, as follows:

    I ask that the documents not be unsealed because I can see no real reason for this.   [The father] has stated within his own affidavit that the ladies from DOHS are not interested in them, and yet he is still trying to ram them down their throats, and have them sent straight to them without their asking for them, or even wanting them.  I believe he is doing this to try and influence the outcome of the Department of Human Services’ investigation and the Children’s Court in Victoria.

11. First, it seems to me entirely understandable that I say any litigant would seek to use material properly before a court (and in particular, reasons for judgment made by the court). That is all the more so if the reasons and material emanate from this court, which is specifically charged with a statutory responsibility to make orders in the best interests of children.

12. Many, if not all, of the issues central to the investigation, assessment and decision by this court, might well be seen by a litigant as “influencing the outcome of the Department of Human Services’ investigation”, and/or “the Children’s Court in Victoria”. 

13. Secondly, I would be staggered if, to use the mother’s words, “the ladies from DOHS are not interested” in the considered opinions of an experienced reporting social worker, a forensic psychiatrist and the children’s counsellor, particularly where the former two have been cross-examined and their opinions exposed to scrutiny and analysis by a judge.

14. It is, in my view, entirely appropriate that a litigant ought to be given the opportunity to “influence the outcome” of any proceedings (that being any litigant’s purpose in any proceedings), by being in the position of permitting that court to be aware of any such material if, of course, the material is admissible and the court considers it appropriate to accept it.

15. The mother goes on, in her affidavit, to say,

    (the father) has blatantly used reports from this court, in fact, any document that he can, to run me down.  He has admitted to doing this to my mother, and there are many more people that he has told as well.  Both him and his father denigrate both myself and [Mr H] to as many people as possible, and use the court findings as proof to back them up.   Ever since the first report by Mr […] (I think that should be [Mr M]) [the father] has been doing this, and I am asking the court stop him from doing this... 

16. It is, of course, axiomatic that the publication of any account of proceedings otherwise prohibited by section 121 of the Act, ought be approved, if at all, only for the purposes for which the publication is contemplated, and, the restriction inherent in the section should continue to apply on the alleged, or any, wholesale publication of any such account. That is, indeed, the whole purpose of section 121 of the Act, and the prohibition contained within it.

17. Equally, however, section 121 contains a number of exceptions to the prohibition on publication within it. Specifically, section 121(9)(a) provides:

    The preceding provisions of this section do not apply to, or in relation to:

    (a)The communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings.

18. Subparagraph (g) of that subsection provides for publication of accounts of proceedings where the publication has been approved by the court. 

19. It seems to me that the publication of what I will broadly describe as documents connected with the proceedings, as sought in the Application in a Case filed by the father, are squarely caught by the exception contained in section 121(9)(a) of the Act.

20. The application seeks to use court documents in connection with proceedings which, in effect, seek to challenge the making of an order under State law, which themselves pertain to actions by, and in connection with, the child C, who was the subject of proceedings in this court.  

21. Having said that, there is, it seems to me (understandably and properly), considerable reluctance and nervousness about using documents that might otherwise be caught by section 121 of the Act.

22. So as to make the position clear, it seems to me appropriate to make an order of the type sought by the father. 

23. No evidence adduced by the mother convinces me that the order ought not be made.  Indeed, I consider it important that the father be expressly provided with the opportunity to provide such documents to a court charged with the responsibilities to which I have just referred, because it seems to me important for the Department of Human Services, and that Court, to have as complete an understanding as possible, of the complex facts and circumstances surrounding the position in which C currently finds himself.

24. It is axiomatic, and I make it abundantly clear, that the publication, intended to be authorised by me, is restricted to that purpose, and the father must not, and is, indeed, prohibited by the Act from, communicating or publishing any account of proceedings, other than as authorised in the order. 

25. Specifying the circumstances and people to whom such publication can be made, is, in light of the concerns expressed by the mother (who also represents herself in these proceedings), is also an important reason for making an order, even though some, at least, of the publications sought to be made by the father might, in any event, fall within the exception.

26. The mother offers no substantial or persuasive reason why the order ought not be made.  There are good reasons, in my view, for making the order, and I propose to do so. 

27. I make it abundantly clear to the self-represented parties that proceedings taken in a State court, pursuant to State legislation, are entirely distinct from proceedings taken under the Family Law Act in this court.  I do not, in the orders that I make, or in my reasons for judgment, presume to tell another court what decision it ought make, or to dictate considerations which it might regard as being relevant, or irrelevant, to the determination of the issues before it.

28. I feel bound to say, though, that I have a very significant concern that there are, here, circumstances currently in existence which seek to undermine the earlier determination of a conflict which has now stretched over many years, and which has encompassed proceedings in the Federal Magistrates Court and this court, for more than two years. 

29. As I have said, those proceedings encompassed reports by a highly experienced social worker with extensive experience in child protection work, a highly qualified and experienced psychiatrist, the children’s own counsellor, and investigations by the Queensland Department of Child Safety, and the earlier orders and reasons given by this court.

30. Of grave concern to me is that allegations with clear and familiar historical overtones, are being aired now to different people, in a different State, as a result of actions taken by a teenage child, allegedly alone and of his own volition. 

31. In particular, the complexity of that very troubled child’s views, the previous appalling behaviour of his mother and her fiancée, and the formative catalysts for the most recent expression of C’s views, have been canvassed at length in the process, reports and analyses earlier referred to.

32. The father seeks an order, at paragraph 7 of his application, for an injunction restraining the mother from removing the child from a specified place.  In my view, such an order is an order “in relation to a child”, in circumstances where that child is “under the care ... of a person under a child welfare law”, by reason of the making of the interim accommodation order in the State of Victoria. 

33. Accordingly, there being no consent to the order being made as the section contemplates, and my not being persuaded that I should make such an order when the child ceases to be under that care without further proceedings being heard by me, I decline to make that order.

34. Further, and in any event, it seems to me that the orders already made by the court (which will apply in circumstances where no child welfare law is in operation), are sufficient so as to contain within them, in combination with the provisions of the Family Law Act, the prohibition sought in the application. (I have in mind, for example, section 65M(2) of the Act, which specifically deals with a person removing a child from the care of a person in whose favour a parenting order lies).

35. Finally, the father seeks an order in terms of paragraph 8 of the application, earlier quoted.  The effect is to seek an injunction restraining the mother from making any complaint in respect of either child, to any child protection agency or police force, without permission from the Family Court. 

36. It seems to me that the circumstances in which any such complaint might be made in respect of a child are many and varied, and the restriction, particularly expressed in terms as broad as that, severely impacts upon the capacity of parents to act properly and rationally in support of their children. 

37. In saying that, it will be clear from my earlier reasons that I have profound concerns about the actions, attitudes and behaviours of the mother and her fiancée, in and about the children, and that at least some of those concerns relate to allegations (which apparently continue), made by the mother in respect of the children.  So, whilst I record that those issues are present, and, of course, are a matter of considerable concern to the court, I am, nevertheless, not persuaded that I should make the order as sought at paragraph 8 of the application. 

38. Accordingly, I will dismiss paragraphs 7 and 8 of the application in a case filed on 26 October 2009.

39. An application has been filed by the mother on 22 October 2009, but not yet returned from the registry for service by her upon the father. It seeks both final orders and interim orders with respect to both children.  She seeks final orders that C “be released from his father’s sole care and be allowed to choose where he resides”, and by way of interim order, in similar terms, an order that “[C] ... be given the right to choose whom he resides with”.  Other orders are sought providing for the father to “have restricted access” to both children, and other orders which I do not need to refer to for current purposes.

40. The evidence before the court is that an order under a child welfare law in the State of Victoria has been made in respect of the child C. I am unaware what steps, if any, are intended by that department, either in the short, medium or long term. The mother will need to make herself aware of the provisions of section 69ZK of the Family Law Act, and the ramifications of that section, for any parenting orders sought in respect of C.

41. The mother contemplates proceedings, then, in which orders cannot be made save as contemplated in s 69ZK(1)(a) or (b).

42. In the event that either applies, an order is sought by the father for the re-appointment of an Independent Children's Lawyer.

43. There is no written application before the court by the mother to alter orders earlier made by me. An oral application is made today by the mother for an order (for, what is, effectively, a mandatory injunction forcing the father to take D to counselling). I have made parenting orders after a three day trial, in which a number of issues were canvassed, and in which I made a number of comments about the respective capacities to parent and attitudes towards parenting of each of the parents. Those orders apply. I repeat what I earlier said in relation to s 69ZK. I will not entertain that oral application today.

44. The father applies orally for the appointment of an Independent Children’s Lawyer, and says that the application is necessary by reason of paragraph 12 of final orders made by me on 31 March 2009; the previous appointment of the independent children’s lawyer expired upon the expiration of the appeal period.  There being no appeal, the Independent Children’s Lawyer was discharged on 30 April 2009.  The father seeks to reappoint her.

45. It is important that any such lawyer be ready to step in as soon as any jurisdictional impediment imposed by s 69ZK is no longer present. It seems to me that the appointment of an Independent Children's Lawyer is not an order “in relation to a child” because it neither affects the rights of a child nor, per se, creates any obligations, duties or responsibilities for any carer or person with parental responsibility for a child.

46. The mother has no objection either to the oral application being made by the father, or for the appointment of an independent children’s lawyer.  She contends that she would “rather it was someone independent”, but at the same time, concedes that any new independent children’s lawyer “would have a lot to wade through”.  The concession made by the mother is, with respect, entirely sensible and intelligent.  As I said in my earlier reasons, this matter has a lengthy and complex history, and the task for any new independent children’s lawyer would be significantly more onerous than for the previously appointed lawyer.

47. In terms of the sorts of factors identified in the decision of the Full Court in Re K (1994) FLC 92-461, this case involves longstanding allegations of physical, sexual or psychological child abuse, whether as against one party or the other. Secondly, it involves an apparently intractable conflict between the children’s parents. Thirdly, the elder of the children, C, is approaching 16, and in the unanimous words of three experts engaged in the trial of this action, is expressing “wholly negative” views about his father.

48. Dr N, a reporting psychiatrist, has referred to personality issues on the part of, at least the mother, and probably both parents, in respect of their parenting.

49. C is a child of mature views, and is expressing strong views.

50. At the moment, C is residing with his maternal grandmother, and D is residing with her father, and accordingly, the children are split. 

51. There is no doubt in my mind that this is a case appropriate for the appointment of an independent children’s lawyer, and I make an order in the usual terms for the appointment of an independent children’s lawyer. 

52. I will respectfully request the Director of the Legal Aid Office, Queensland, to reappoint Ms Chan, who was the independent children’s lawyer previously in this matter.  In the absence of Ms Chan’s availability, it is respectfully requested that an experienced independent children’s lawyer be appointed in her stead.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:     

Date:  18 November 2009