Zarins & Mylne (No 4)
[2013] FamCA 749
•3 October 2013
FAMILY COURT OF AUSTRALIA
| ZARINS & MYLNE (NO 4) | [2013] FamCA 749 |
| FAMILY LAW – CHILDREN – Interim Orders – with whom a child should spend time – best interests – orders made for the child to spend time with the mother. FAMILY LAW – EVIDENCE – Consideration of whether a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) should be given to the mother in respect of evidence given in her trial affidavit. |
| Family Law Act 1975 (Cth) Evidence Act 1995(Cth) s 128 |
| Wood (1976) 90-098 at p. 75,447 Harris & Harris (1977) FLC 90-276 Hall & Hall (1979) FLC 90-713 Goode & Goode [2006] FLC 93-286 Cornwell v R; R v Cornwell [2006] NSWCCA 116 Meiko Australian Pacific Pty Ltd v Adam Samuel Hinchliffe [2009] NSWSC 354 |
| APPLICANT: | Ms Zarins |
| RESPONDENT: | Mr Mylne |
| INTERVENOR: |
| FILE NUMBER: | ADC | 4802 | of | 2008 |
| DATE DELIVERED: | 3 October 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 23 September 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Nelson QC |
| SOLICITOR FOR THE APPLICANT: | Belchamber Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Edwardson QC |
| INDEPENDENT CHILDREN’S LAWYER: | Norman Waterhouse |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Lindsay |
| SOLICITOR FOR THE INTERVENOR: | Legal Services Commission of SA |
Orders
That further consideration of the matter be adjourned to 9am on 17 December 2013 (1 hour allowed).
That during the period of the adjournment B born … 2007 shall spend time with the mother as follows:-
(a) Each alternate Saturday and Sunday from 9am to 5pm;
(b)From the conclusion of school (or 4.30pm if not a school day) to 7.pm Thursday in each alternate week.
That all handovers not from the child’s school do occur inside the M Town Police Station between the father or his nominee and a person nominated by the mother, but in the absence of the mother.
That the mother be and is hereby restrained from permitting, allowing, encouraging, arranging or facilitating the maternal grandmother from:-
(a) Attending at or in the vicinity of the child’s school; and
(b) Approaching the child at or in the vicinity of the child’s school.
That the mother, the father and the said child shall attend upon Dr C upon such times as may be directed by the Independent Children’s Lawyer for the purpose of the preparation of an update Family Assessment Report, with such report to be published not later than 4pm on 13 December 2013.
That a Certificate be given to the applicant pursuant to Section 128 of the Evidence Act 1995 (Cth) in respect of evidence given in her trial affidavit filed 21 June 2013.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zarins & Mylne 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 ADELAIDE |
FILE NUMBER: ADC 4802 of 2008
| Ms Zarins |
Applicant
And
| Mr Mylne |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter was listed before me for a hearing in respect of an amended application in a case filed by the mother on 15 July 2013 (“the application”). The focus of the application was extensive parenting orders in respect of the infant child B born in 2007 (“the child”). If granted there would be a significant change to the current parenting arrangements as provided for in the orders made before Macmillan J on 21 December 2012 and in the further orders made on 6 May 2013. Essentially the said child lives predominantly with the respondent father and spends time with the applicant mother on a limited and supervised basis.
By response filed on 16 September 2013, the father sought orders that would see the said child spending supervised time with the mother as follows:-
·From 9am to 5pm Saturday and 9am to 5pm on Sunday of each alternate weekend
· From 4.30pm to 7pm on Thursday in each alternate week; provided that the said time is supervised by Ms N and/or Nanny SA or such other person as the Court thinks fit.
The proceedings are complex and were commenced by the father filing an initiating application on 3 December 2008 seeking parenting orders. For the purposes of this interim hearing it is sufficient to note that final parenting orders were made by Federal Magistrate Simpson (as he then was) on 14 May 2010. The orders were comprehensive and after a stepped adjustment period, the child would live with each of her parents on a week about basis with some minor adjustments to take into account certain agreed arrangements. Demonstrably, the orders currently in place indicate a significant departure from the provisions in the orders of 14 May 2010. To place the current interlocutory proceedings in context, it is necessary to revisit the turbulent history of the parties since the making of the final orders and what only could be described as the troubled and toxic relationship that exists between the parties in which the child the child now finds herself enmeshed.
Background
Following the final orders made on 14 May 2010, it is uncontroversial that the relationship between the parties significantly deteriorated. The Court record reflects that the father considered the mother had breached the final orders which resulted in a contravention application being filed by the father on 1 September 2010. Ultimately, the mother was found guilty of contravening paragraphs 8 and 13 of the orders made on 14 May 2010. The mother was ordered to enter into a bond in the sum of $2,000 to operate for a period of two years on the condition that she be of good behaviour and observe and comply with the parenting orders as they relate to the child. The mother made allegations that the father had assaulted her at a handover on 22 August 2010. The mother further alleged as and from January 2011 that the father had physically abused the child. The father alleged that the mother did not make the child available on 21 January 2011 which then prompted the father to file and application in a case for delivery up of the child on 2 February 2011. Allegation and counter allegation were made by each of the parties and it appears that the South Australian Police were involved by the mother in at least the allegations of physical abuse directed against the father.
On 4 March 2011 Federal Magistrate Simpson (as he then was) transferred the proceedings to the Family Court of Australia and as part of His Honour’s order, suspended the father’s time with the child.
On 29 April 2011 the mother filed an initiating application which in general terms sought orders that the child live with the mother and spend significant time with the father namely, on each alternate weekend and for half of the school holidays. On 3 May 2011 Justice Dawe made orders that reinstated paragraph 3 of the orders made on 14 May 2010 namely, that the parties have the shared care of the child. Tragically, the animosity between the parties continued. On 4 November 2011 the father filed a further application in a case seeking the delivery up of the child in circumstances where he alleged that the mother had interfered with the time that the child was to spend with him pursuant to the current orders in place.
On 23 March 2012 the mother alleged that there had been considerable bruising observed on the child’s body, that the child had been the subject of examination and that Families SA were informed and would investigate. As a result, effective time between the father and the child was stopped and upon the father being advised that there had been further notifications alleging abuse by the father towards the child and that she would be interviewed by the Child Protection Services, the father filed a further application in a case for delivery up of the child pursuant to the current orders.
Following some supervised sessions the father resumed spending time with the child in July 2012.
The matter was listed for final hearing before Macmillan J on 29 October 2012. Upon an indication by counsel that there was a reasonable prospect that the parties might reach a settlement and then, that indeed that the matter had settled in principle, the proceedings were held over until the following morning.
During the intervening night the mother was taken to the hospital with what appears to have been a psychiatric event. The matters that confronted Her Honour, notwithstanding that there was little evidence as to the current psychiatric functioning of the mother, prompted the court to consider whether the child should be returned to her mother’s care pursuant to the current orders. Out of an abundance of caution, Her Honour suspended the orders of 14 May 2010, but in particular in respect of paragraphs 3, 5 and 7 of the said orders and made orders that the child would live with the father. Her Honour gave liberty to the mother to apply on short notice to reinstate the orders or to seek such other orders as she may consider appropriate.
The matter progressed with significant caution. On 21 December 2012 consent orders made by Macmillan J that upon the parties being accepted into the D Children’s Contact Service Supervised Program (“the Program”), the mother would initially spend time with the child as may be nominated by the director, but pending acceptance, for a period of three hours each Sunday provided such time be supervised by Nanny SA.
Order 5 provided that:-
That the mother do attend upon such psychiatrist as nominated by the Independent Children’s Lawyer for the purpose of an independent psychiatric examination and with the cost of same to be borne by the mother.
That process ultimately resulted in a psychiatric report being provided by Dr I dated 22 May 2013. Macmillan J further considered the proceedings on 25 February 2013.
Her Honour made reference to a consideration of the mother’s application seeking the protection of a certificate pursuant to Section 128 of the Evidence Act. The certificate was sought immediately prior to the mother giving sworn evidence in the initial proceedings which commenced on 29 October 2011. Macmillan J further referred to the circumstances of the request for a certificate and noted in paragraph 3 of her reasons for judgment delivered 28 February 2013:-
Prior to these events I had made some preliminary rulings in relation to procedural matters and the mother had sought the protection of a certificate pursuant to Section 128 of the Evidence Act in relation to evidence with respect to allegations that she had falsified a medical certificate and a deed of trust and with respect to evidence in relation to the alleged death of her former partner.
I raise the issue of the Section 128 certificate because as part of the current proceedings the mother has filed an application in a case on 17 June 2013(and also an amended application) seeking the following order:-
(1)That this Honourable Court issue a certificate to the applicant (mother) under Section 128 of the Evidence Act 1995 in respect of her evidence in her trial affidavit.
The document referred to is the mother’s trial affidavit filed 21 June 2013. The focus of the certificate refers to the admitted false representations made by the mother and referred to in paragraphs 5, 6 and 7 of the said trial affidavit document, but first raised in evidence by the mother in the proceedings commencing 29 October 2012.
As discussed, it is uncertain as to whether Macmillan J ruled on the provision of a certificate pursuant to Section 128 of the Evidence Act but it seems as if, and notwithstanding the admissions made by the mother on that occasion, no certificate issued. The matter is now raised by the mother in somewhat uncertain circumstances namely, whether the scope of the orders sought in the application in a case filed 17 June 2013 is to be limited to matters of evidence and admission set out in the mother’s trial affidavit filed 21 June 2013, or whether it is intended to have a retrospective scope.
At this stage, I do no more than to highlight the issue in terms of the factual and procedural matrix.
By order of Macmillan J made 25 February 2013 orders were made preparing the matter for further listing as a final hearing in late July 2013. Her Honour’s orders were comprehensive and can be summarised as follows:-
· The production and if pursued, the resolution of any objection taken to the production of the notes of Dr G (the mother’s treating psychologist);
· The preparation of an update report from Families SA pursuant to Section 69ZW of the Family Law Act 1975;
· Trial directions;
· The attendance on by the parties on Dr C for the purposes of the preparation and publication of an update Family Report.
The matter came back before Macmillan J on 30 April 2013 in respect of an application in a case filed by the father on 12 April 2013 seeking a suspension of the orders that enabled the mother to spend time with the child supervised by Nannies SA and specifically directed towards the involvement of the maternal grandmother Ms O Zarins seeking to restrain her from attending at or being in the vicinity of the child’s school or approaching the child at the vicinity of the school.
On 31 May 2013 the father was charged with three counts of rape. It is alleged that the offences occurred in 2008.
By application in a case filed by the father on 4 July 2013 (this application is the subject of orders made and reasons delivered on 26 September 2013), he sought that the trial listed before Macmillan J to commence on 23 July 2013 and be adjourned generally pending the finalisation of the criminal law proceedings brought against him. On 9 July 2013 Her Honour vacated the trial listing and upon the indication of the parties that they each wish to bring interim proceedings in respect of parenting arrangements of the child. Her Honour made orders which resulted in the filing of the current application of the mother filed 15 July 2013 and the response to the application filed on behalf of the father on 16 September 2013. The said amended application of the mother and the response of the father came before me on 23 September 2013 for determination.
Documents relied upon
The court record is extensive. A resolution and determination of the contested interim amended application and response potentially involved reference to various documents filed by the parties, orders made and judgments delivered. I did not consider it appropriate without guidance that I should be required to range widely through the court file and accordingly, directed that counsel for the parties provide me with a list of documents that I am entitled to consider. For completeness the following documents have been referred to and considered:-
· Judgment delivered by Justice Macmillan on 6 May 2013 (in relation to maternal grandmother’s attendance at child’s school)
· Order dated 6 May 2013
· Affidavit of Ashley Kent (ICL) filed 28 May 2013 (annexing report of independent psychiatric examination of the mother by Dr I)
· Mother’s affidavit filed 21 June 2013 (mother’s trial affidavit)
· Affidavit of Dr G filed 21 June 2013
· Father’s application in a case filed 4 July 2013
· Father’s affidavit filed 4 July 2013
· Order dated 9 July 2013
· Mother’s amended application in a case filed 15 July 2013
· Mother’s affidavit filed 15 July 2013
· Affidavit of Ms P affirmed 29 July 2013
· Affidavit of Ashley Kent (ICL) filed 29 July 2013
· Affidavit of Ashley Kent (ICL) filed 31 July 2013
· Father’s affidavit filed 13 September 2013
· Father’s response to an amended application in a case filed 1 September 2013
· Affidavit of Ms O Zarins affirmed 17 September 2013
· Affidavit of Ms P filed 19 September 2013
· Mother’s affidavit affirmed 17 September 2013
· Affidavit of Ashley Kent (ICL) filed 19 September 2013
· Orders of Simpson FM made 14 May 2010
· Affidavit of Ms P filed 20 September 2013
· Report of D Children’s Contact Service.
The Evidence
The father seeks orders that the child the child spend time with the mother from 9am to 5pm Saturday and 9am to 5pm Sunday each alternate week and from 4.30pm to 7pm each alternate Thursday. Specifically the father seeks that the time with the mother be supervised by Ms N and/or Nanny SA or such other person as the court might consider appropriate. Specifically if there is to be supervision, he rejects absolutely that the maternal grandmother should be considered as a suitable supervisor. The mother opposes the orders sought by the father and in particular that any time that the child spends with her should be supervised. If the court requires supervision, the mother promotes the maternal grandmother as an appropriate supervisor. The broad position adopted by each of the parties is as set out in the father’s affidavit filed 13 September 2013 in support of his application generally and the responding affidavit of the mother filed 20 September 2013.
Consistent with the manner in which the parties have conducted the proceedings to date, the affidavit material is replete with allegation and counter allegation. Whilst I have had regard to those matters raised by each of the parties, I am not able to make any determination on the evidence. It is sufficient to have regard to the general flavour and tenor of the matters raised by each of the parties to highlight that the issues are complex and the factual matrix is as yet unresolved. The mistrust as between the parties is high, but ultimately I must make orders that promote the interests of the child the child as the paramount consideration notwithstanding the inability of her parents to reach any accommodation or accord. There will need to be a trial in order to determine the competing claims of the parties and as is clearly apparent, but for the advent of the criminal charges which the father is now facing, the proceedings would have been resolved by way of final hearing before Macmillan J in July 2013. It is not simply a matter of a new trial date which would then provide a court focus for the parties, but importantly the extent to which, if at all, the interim proceedings need to be dealt with.
Subject to an early determination by either the Police or the Director of Public Prosecutions that would seek the criminal proceedings against the father resolved in a timely fashion, it is not controversial that the delay in the resolution of those criminal proceedings could take 12 to 18 months. Macmillan J considered that the criminal proceedings was an appropriate basis to vacate the July 2013 trial (noting the mother did not oppose an adjournment) and adjourned a further listing to a date after the father’s fate is determined. Given the history of the matter, the nature of the allegations made by each of the parties against the other and the possibility that the manner in which the criminal charges are now brought against the father might be in and of itself a significant issue in these proceedings, I do not propose to interfere with the approach adopted by Her Honour.
The unfortunate consequence of a lengthy adjournment of the finalisation of the proceedings requires the interlocutory proceedings to be considered. Whilst the father is content for the mother to continue see the child but on the basis that it be supervised and that the supervisor not be the maternal grandmother, the mother’s position is that the supervision is unnecessary, onerous and financially difficult.
The supervision costs by Nanny SA each Sunday is $330. Whilst there is a further dispute between the parties as to the financial circumstances and resources of each of them, I accept as I must that if supervision of the time that the child spends with her mother is to remain supervised there will be a cost to her which the father considers should be the mother’s responsibility. He has no financial resource which would enable him (according to his assertion) to contribute to the costs of supervision.
The mother has obviously discussed the potential for ongoing supervision with Ms N but it would seem clear that she is not able to come to any private or separate arrangement with the mother to supervise the time spent.
By affidavit filed 18 September 2013 the maternal grandmother Ms O Zarins promotes herself as prepared to supervise the time between the child and the mother pending trial. In the ordinary course, and subject to appropriate undertakings being given, a grandparent would be entirely suitable as a supervisor with the added benefit that there is presented a more normal family setting for the child. I have no doubt that the maternal grandmother does share “a very close and affection relationship” with the child. Unfortunately, the maternal grandmother has become embroiled in the proceedings. Her continued involvement with the child and the child’s attendance at her school was the subject of application and consideration by Macmillan J on 30 April 2013. Her Honour made the following remarks in respect of maternal grandmother’s involvement with the child’s school:-
27.The mother admitted that the maternal grandmother had visited the child’s school prior to Easter and also on the child’s birthday. She opposed the orders sought by the father on the basis that those orders would also preclude the maternal grandmother’s attendance at events and activities at the school to which family members might be invited or expected to attend. I am satisfied that the grandmother’s attendances at the school are in all the circumstances of this case not in the child’s best interests. A child’s school environment can be a haven for a child when there is a dispute between parents in relation to the arrangements for that child. I am satisfied that in the circumstances of this case the attendance of the grandmother at the child’s school has the potential to undermine the child’s sense of security at school. In a perfect world, the child might benefit from her grandmother’s attendance at events and activities at the school to which family members are invited or might be expected to attend, but not in the context of these ongoing proceedings.
It is a distinct possibility that the maternal grandmother may well be a significant witness in the proceedings. It is likely that her evidence will be in support of the various allegations of the mother and generally adverse to the father. He does not trust the maternal grandmother and she is unlikely to be supportive of the father and his relationship with the child.
To some extent the maternal grandmother recognises that whatever her motives may have been, her conduct has either not been helpful or is unlikely to be seen to be helpful. This recognition is encapsulated in an undertaking tendered by Ms O Zarins on 23 September 2013 in the following terms:-
(1)I will not attend at [Suburb Q] Primary School other than as permitted by orders of this court.
(2)I will behave courteously to the staff of the school at all times that I attend at the school in my capacity of supervisor of my daughter [Ms Zarins’] time with my granddaughter the child and at any other time I may have cause to attend.
(3)I will not discuss these proceedings or any criminal proceedings against the father with the staff or parents of the school.
It might also be convenient to highlight an earlier undertaking given by the mother and filed 20 September 2013 in the following terms:-
(1)I will behave courteously to all members of staff at the [Suburb Q] Primary School, when attending the school for handovers, or for other purpose.
(2)From discussing these proceedings and the pending criminal charges against [Mr Mylne] with any parent from [Suburb Q] Primary School.
(3)From discussing these proceedings and the pending criminal charges against [Mr Mylne] with staff of [Suburb Q] Primary School, save for exchanges of communication from my legal representatives for the purpose of preparation for trial.
Nonetheless, and providing that the maternal grandmother’s input, communication and contact with the child shows demonstrable restraint on her part and a clear understanding that given the current complexities of the proceedings she does her utmost to remain removed from the litigation, the maternal grandmother has a significant beneficial role to play in the life of the child.
The affidavit filed by the maternal grandmother on 18 September 2013 in support of the mother’s application that she be considered as a supervisor suggests that she has now developed significant insight into the sort of behaviour that is potentially damaging to the child. By necessary implication the mother and the maternal grandmother are now more aware how damaging it would be to the child if either of them engaged in the following conduct:-
a)To denigrate the father or members of his family or his associates;
b)Make negative remarks about the child’s school;
c)Make negative remarks about the father’s care of the child;
d)Discuss these proceedings, the criminal proceedings or any other court proceedings or investigations concerning the welfare of the child;
e)Discuss any proceedings or investigations relating to the welfare of Jayden;
f)Behave inappropriately towards the child in any way.
Accordingly, whilst I do not consider that the maternal grandmother would be appropriate as a supervisor, providing she gains an understanding of the precarious precipice upon which she and the mother find themselves, I do not intend to make any order that would see or restrict the maternal grandmother’s involvement with the child save and except in relation to her attendance at the child’s school.
Supervision by E Supervision Organisation
I have had regard to the affidavit material filed on behalf of the mother which records (by way of various annexures) the reports of each period of time spent by the child the child with the mother under supervision of Nanny SA. Essentially, the mother’s supervision by Nanny SA has been undertaken by Ms N and I note the matters set out in her affidavit filed 25 April 2013. Essentially however, the supervised visits commenced on or about 23 December 2012 and with only the most minor variation have continued to the present date. I do not propose to recant the numerous entries and observations of Ms N but I am satisfied that they record and report appropriate interaction between the mother and the child and highlight, (as would be expected) a significant and affectionate bond between the mother and the child. Nonetheless, the very fact of supervision provides a level of artificiality into the interaction. Supervision has a place in the short term but if it is likely that the requirement for supervision should continue over an extended period of time, other considerations need to be brought to account. Significantly, I need to weigh up the demonstrable desire of the child to spend increased time with her mother against any risk to the child arising from the alleged behaviour of the mother in the inappropriate involvement of the child in the proceedings in circumstances where it might be considered that the mother’s own agenda takes precedence over the needs of the child.
Supervised contact – D Contact Service
In circumstances not dissimilar to the supervised time by Nanny SA the mother has had her time with the child supervised by staff at the D Children’s Contact Service. There has been a significant number of observed contact periods. The supervision is ongoing. Whilst care must always be taken as to the weight and use to which observed interactions can be put given that the setting is artificial, the mother, would understand that her behaviour and interaction with the child is closely monitored. Notwithstanding those obvious reservations, the observations as form annexure “AMK1” to the affidavit of the independent children’s lawyer namely Ashley Malcolm Kent filed 29 July 2013, support and supplement the observations of Ms N of Nanny SA namely, that the relationship between mother and child is one of strength and affection. The child clearly delights in the company of her mother.
The observations are generally unremarkable save for the very last remark as recorded at the conclusion of a visit on 7 July 2013 (which remark was highlighted by counsel for the independent children’s lawyer) namely:
While [Ms Zarins] packed up she asked the worker, is it normal for doctors to touch girls privates. The worker said they could not answer that as they were not a doctor.
I do not know the significance of the remark nor the import or underlying issue that the mother either intended to convey or was concerned about. Counsel for the independent children’s lawyer urges me to form a view that this is corroborative of the alleged behaviour of the mother in the promotion of numerous unsubstantiated notifications of abuse by the father towards the child. Whilst I accept that this is a possible adverse interpretation, it does not derogate from the weight of material available in support of the relationship between the mother and the child and the lack of any other adverse incident or matter during the many supervised periods.
Family Assessment Report – Dr C
Dr C has been involved in the proceedings from as early as September 2009. Reports have been prepared variously in September 2009, May 2010, September 2011, October 2012 and then by further update report of 26 July 2013. Accordingly, Dr C has been in the unique position of reporting on the extended dispute between the parties and the various incantations of the care arrangements for the child the child. The period since 10 October 2012 is particularly important because it reflects the period during which the child has been living with the father.
Whilst the report was prepared in accordance with an order made 25 February 2013 (in preparation of the trial proceedings), the report has the advantage of bringing to account the mother’s application in a case (now the amended application in a case filed 15 July 2013) with a view to a change in the parenting arrangements which would see the child primarily reside with her or alternatively, that she would spend significant and substantial time with the child and if supervision is required then such time to be supervised by the maternal grandmother.
Dr C had the advantage of considering a substantial quantity of documents that comprise the court file. In particular, he has considered the psychiatric report of Dr I and reports of various health practitioners but in particular the mother’s psychologist Ms G.
Consistent with the observations of Nanny SA and the workers at D Contact Centre, Dr C makes the following observations of the child with her mother (made on 3 June 2013):-
The mother was very enthusiastic about seeing [the child] and had brought with her chocolates and a roll up bar. [The child] was pleased to see her mother, hugging her excitedly and enjoying the treats offered by the mother. They talked about school and various other everyday things, including the tattoos (temporary) the child has shown me in her interview. They then settled into drawing which became the occasion for further conversations about dogs, relatives and features that might be included in the evolving drawing. [The child] interacted freely and comfortably with her mother while the mother was overly enthusiastic and attentive to the child, making frequent comments about what they were doing or discussing. There was no sign of discomfort or distress in the child while in the presence of the mother.
Dr C reported that the child was very comfortable in the presence of both parties. There was no suggestion of distress in the father’s care and Dr C records that:-
whilst [the child] would naturally like more time with her mother, she does not present as being overly distressed at the low level of contact that she has been recently experiencing.
Notwithstanding that there was some equivocation on the part of the child, Dr C proffered the opinion that the child wanted to spend more time with the mother. Specifically there is no suggestion that the child will not cope with whatever orders the court makes.
Dr C notes that whilst the report was originally intended to deal with issues that arose out of the aborted trial in October 2012, he considers that the events post that date have assumed an overarching significance. It is noted that the father had been charged with criminal offences involving allegations of rape and upon the topic of the fabrication and misrepresentation of the mother he says:-
Further and perhaps even more confounding, is the perspective that the mother now proposes on her admitted fabrications – namely, that it was her way of dealing with inordinate stresses in the lead up to the trial, a proclivity that she now claims makes sense against the background of what she now regards as the eruption of PTSD symptoms around that time. Further, it is perhaps surprising that this has all arisen suddenly at just the time when it is most helpful to her case in this family matter. According to her somewhat complex account, her son [J’s] admissions to the school counsellor around November last year led eventually to the police charging the father with rape, all apparently without her influencing the process.
Dr C considers that the resolution of these further allegations, claims and any connection to the mother’s PTSD – like symptoms will have a significant relevance to the future parenting arrangements for the child. Dr C does note however that:-
As an interim measure, [the child] would benefit greatly from more substantial time with the mother.
A consideration of the psychiatric report of Dr Is dated 22 May 2013 leads Dr C to make the following comment:-
[Dr I] also raises concerns about the mother’s capacity to parent appropriately, especially in the crucial area of distinguishing and honouring the boundary between preoccupation with her own needs and emphatic focus on those of the child. He also mentions a proclivity to denigrate the father in the presence of the child and ongoing psychological instability. On this basis, he recommends supervised contact and this has been reflected in the court orders.
In summary, if the matters raised by the mother in terms of the allegations directed against the father are supported by the evidence then this will be seen to support the “genuineness of her symptomology and its’ underlying link to purported sexual abuse by the father”. However, the corollary to that position is that the mother may use her time will the child to attempt to further discredit the father. It is out of an abundance of caution that Dr C recommends the maintenance of supervision.
The independent children’s lawyer sought a further update report from Dr C following the provision of the further information.
Dr C makes the following comment:-
As already noted, the only question in my mind relates to the wisdom of allowing the mother’s time to be unsupervised given the continuing mental health issues and interpretive debates surrounding her proper diagnosis. Treating an ongoing capacity to manage herself and parenting without unacceptable emotional risk to the child.
It is considered however that there should be more time between the child and her mother. Dr C recommends that subject to the continuation of supervision by Ms N and the maternal grandmother, an overnight period should be introduced. Dr C recognises that the continued involved of Ms N is “somewhat artificial and inhibiting for the child … for such an extended period”.
After careful consideration of the affidavit material, the various reports and the documents to which counsel for the parties have referred me, I have formed the view that the continuation of supervision is onerous, problematic and may well have the effect of exacerbating an already difficult circumstance. Implicit in the reports of Dr C is a clear recognition that but for his concerns in terms of the mother’s functioning there should be no impediment to the child spending significant and substantial time with the mother. Dr C adopts a cautious approach but I am of the view that given the long history of observed supervised interaction between the mother and the child, the current affidavit material filed on behalf of the mother and the maternal grandmother and the various undertakings that they are prepared to give, the interests of the child will be served by a relaxation of the supervision requirement.
To the extent that such a decision is reached not without a high degree of reluctance, that uncertainty can be tempered by the court monitoring the future time that the mother and the child will spend with each other and seeking an early court date for review of the interim arrangements which would include prior to that date a further assessment being undertaken by Dr C with a short addendum report to be published.
The Law
In Goode & Goode [2006] FLC 93-286, the Full Court considered the appropriate legislative pathway when dealing with interim parenting applications:-
81.In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parties as to what constituted the best interests of the child. However, the legislative pathway must be follows.
82.In an interim case that would involve the following:-
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested facts;
(d)considering the matters in Section 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in Section 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe that there has been abuse of the child or family violence, or, in an interim matter, the court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply deciding whether it is rebutted because application would not be in the child’s best interests:
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in Section 60CC or impracticable;
(h)if equal time is found not to be in the child’s best interest, considering making an order that the child spend substantial and significant time as defined in Section 65DAA (3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in Section 60CC or impracticable;
(i)if neither equal time, or substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of the consideration of one or more of the matters in Section 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in Section 60CC; and
(k)even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it, or, even if neither party has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.
As considered, the issue for consideration that arises on the mother’s application is whether she should have the primary care of the child the child giving to the father significant and substantial time. Such an outcome is opposed by the father who says that whilst the child should continue to spend time with the mother, it should be limited, but importantly, supervised by an independent and separate person.
Given all of the circumstances, it is premature to consider any significant change in the primary care arrangements of the child. B is well settled in the care of her father and Dr C makes no adverse finding or remark in respect of the presentation of the child arising from the current care arrangements.
The narrow issue therefore is whether there should be any change to the interim orders and if so, whether supervision should be an ongoing condition of time spent between mother and child. I do not consider that there should be any substantial change to the time that the child spends with her mother but I am mindful of the guarded recommendation of Dr C that supervision should continue and the strong support of that recommendation by the independent children’s lawyer.
The significance of the decision I propose to make in opposition to the recommendations of Dr C and the independent children’s lawyer requires some consideration as to the weight that is to be given to a family report.
The remarks of the Full Court in Hall & Hall (1979) FLC 90-713 are apposite:-
(a)There is no magic in a Family Report. A judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities. In Wood (1976) 90-098 at p. 75,447; Harris & Harris (1977) FLC 90-276; (1977) 29 FLR 285.
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions. When those views coincide with the judgement of the court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of the evidence before him;
Dr C has erred on the side of caution and without any derogation of his position, I consider that the strength of the relationship as between the child and the mother and the clear recognition of same by Dr C, recommends a more optimistic approach.
That is not to say that the orders I propose to make which will see time spent between the child and the mother absent any requirement for supervision is not made without some hesitation and indeed trepidation, but in the best interests of the child, the mother should be given an opportunity to demonstrate that she is able to put the child’s interests at the forefront of her presentation. As indicated, it is intended that the parties, but in particular the child, will be further assessed by Dr C with a view to the matter being reviewed in early December 2013.
A Certificate pursuant to Section 128 of the Evidence Act 1995 (Cth)
By application in a case filed 17 June 2013 the mother seeks the following order:-
(1)That this Honourable Court issue a certificate to the applicant under Section 128 of the Evidence Act 1995 in respect of evidence in her trial affidavit.
The application is supported by a short affidavit which again refers to the trial affidavit but does not specify the particular document the subject of the application and the proposed certificate.
I assume that the relevant “trial affidavit” is the affidavit of the mother filed 21 June 2013. It is in that document specifically in paragraphs 5 to 19 inclusive that the mother refers to the giving of false evidence.
As previously discussed, the matter is made more complicated by the manner in which the false evidence was first raised. The trial commenced before Macmillan J on 29 October 2012. In the examination in chief of the mother by her counsel it was foreshadowed that Her Honour would be asked to make an order for a Certificate pursuant to Section 128 of the Evidence Act. It seems clear from the transcript (Annexure A to the trial affidavit of the mother filed 21 June 2013) that Her Honour would have granted the certificate but for the parties indicating that it was likely the issues between them would be the subject of a settlement, the adjournment of the proceedings to the following morning and then the admission by the mother to hospital. The trial was aborted and Her Honour considered that she was not part-heard.
The trial was again listed for hearing to commence on 23 July 2013 and was subsequently vacated upon the application by the father consequent on him being charged with criminal offences.
The issue therefore is whether in all the circumstances it is appropriate to grant a Certificate pursuant to Section 128 of the Evidence of the Act 1995 (Cth) in circumstances where the trial affidavit has been filed and forms part of the court record.
Section 128 provides as follows:-
(1)This Section applies if a witness objects to giving particular evidence or evidence on a particular matter, on the grounds that the evidence may tend to prove that the witness:-
(a)Had committed an offence against or arising under Australian law or a law of a foreign country; or
(b)Is liable to a civil penalty.
(2)The Court must determine whether or not there are reasonable grounds for the objection.
(3)If the Court determines there are reasonable grounds for the objection, the Court is to inform the witness:-
(a)That the witness need not give the evidence unless required by the Court to do so under sub-section (4); and
(b)That the Court will give a Certificate under this Section if:-
(i)The witness willingly gives the evidence without being required to do so under sub-section (4); or
(ii)The witness gives the evidence after being required to do so under sub-section (4); and
(iii)Of the effect of such a Certificate.
In dealing with the New South Wales equivalent of the Evidence Act (Cth), Einstein J in the decision of Meiko Australian Pacific Pty Ltd v Adam Samuel Hinchliffe [2009] NSWSC 354 at paragraphs [184]-[185] said:-
The terms of 128 clearly contemplates that a Certificate, if granted, is granted prior to the giving of evidence not to evidence which has already been given, particularly where no objection was taken.
To the extent that a Certificate can issue after the giving of evidence, this may occur where the court has ruled but not granted a Certificate - Cornwell v R; R v Cornwell [2006] NSWCCA 116 at paragraph [87]-[94]. A Certificate in those proceedings concerned answers concerning specific matters in cross-examination.
A retrospective application of Section 128 is unwieldy and is not contemplated by that section. It also undermines the purpose of the section, which is to prevent witnesses from being coerced into giving evidence which tends to incriminate them. Once the evidence has been given it cannot be said that the witness has been compelled.
In all of the circumstances, I consider that the matter raised as it was by counsel for the mother before Macmillan J on 29 October 2012 was a proper application for a Certificate pursuant to Section 128 of the Act and that it foreshadowed that there was an objection to the evidence being given unless a Certificate was granted.
It is reasonable that there be a grant of a Certificate notwithstanding that it will have a retrospective focus necessary to cover the trial affidavit of the mother filed 21 June 2013.
Before leaving the topic, the mother should be under no misapprehension that if the focus of the certificate is to cover false evidence given by her then it is unlikely that she will gain the protection that a certificate offers. Section 128 (7) of the Act provides that in any proceeding in an Australian Court:-
(a)Evidence given by a person in respect of which a Certificate under this Section has been given; and
(b)Evidence of any information, document or thing obtained as a direct or indirect consequence of a person having given evidence;
cannot be used against that person. However, this does not apply to criminal proceedings in respect of the falsity of the evidence.
Conclusion
I propose therefore to make orders which provide for the child the child to spend time with her mother without the requirement of supervision.
I certify that the preceding seventy six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 3rd October 2013.
Associate:
Date: 3 October 2013
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