Adair and Holt

[2010] FamCA 776

FAMILY COURT OF AUSTRALIA

ADAIR & HOLT [2010] FamCA 776

FAMILY LAW – CHILDREN – Dispute over discrete issue – Information to be furnished to the supervisor who is to supervise the time spent by the child with the father

Family Law Act 1975 (Cth)

APPLICANT: Ms Adair

RESPONDENT: Mr Holt

INDEPENDENT CHILDREN’S LAWYER: Ms Callander, Legal Aid NSW

FILE NUMBER: NCC 2356 of 2008

DATE DELIVERED: 16 August 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 16 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bateman

SOLICITOR FOR THE APPLICANT: Merrick Spicer & Associates

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O'Rourke

Orders

BY CONSENT, IT IS ORDERED THAT

1. With the consent of the parties and the Independent Children’s Lawyer, it is ordered in accordance with the document signed by the parties and/or their legal representatives and the Independent Children’s Lawyer, dated 16 August 2010, which is marked Exhibit A and placed with the Court file.

   1.1All previous orders in relation to E born … July 2002, herein referred to as “the child” are discharged.

   1.2The Mother have sole parental responsibility for the child.

   1.3The child live with the Mother.

   1.4The child spend time with the Father bi monthly on six (6) occasions each year supervised at Interrelate Supervised Contact Centre, herein referred to as “Interrelate.”

   1.5Within seven (7) days of the date of these orders the parties make contact with Interrelate to register to utilise the supervised contact service.

   1.6The parties do all things required by Interrelate to ensure that the child can commence spending time with the Father pursuant to these orders on the earliest available date.

   1.7The Father pay all costs associated with using the services of Interrelate.

   1.8The parties pay their own costs with respect to facilitating the child spending time with the Father except for the costs covered by the Father pursuant to order 1.7 above.

   1.10The Father give not less then two (2) weeks notice to the Mother in writing and to Interrelate of his intention to attend or not attend each visit with the child.

   1.11The Father communicate with the child by sending her a card six (6) times a year in the month during which the Father does not spend time with the child at Interrelate pursuant to order 1.4 herein.

   1.12The Mother ensure that the child is provided with the cards forwarded to her by the Father and use her best endeavours to encourage the child to read the cards.

   1.13The Father not directly communicate with the child by telephone, Facebook or similar program on the internet, by text message on a telephone or similar device or by letter or card or by any means other than as defined in these orders, without the prior written consent of the Mother.

   1.14Without the prior written consent of the Mother, the Father shall not approach the child at any place or be in any place including but not restricted to any school that she may attend from time to time, her home, at any sporting event, social activity or professional appointments such as doctors rooms, providing that he may attend the child’s school out of school hours when the child is not there for the purpose of meeting with the school principal.

   1.15The parties are hereby restrained from denigrating each other in the hearing or presence of the child and are restrained from exposing the child to other people denigrating the other party.

   1.16The Mother ensure that any school that the child attends from time to time is provided with the Father’s current address details and is authorised to provide him at his expense, with copies of all material and oral information including face to face interviews with the school principal, in relation to the child’s academic progress and development with which a parent would be provided with in the normal course of events.

   1.17The Father ensure that the Mother has his current address details and telephone number by providing them to her in writing.

1.18The Mother ensure that the Father has an address through which to communicate with her or the child pursuant to these Orders herein by providing the same to him in writing.

1.19The Mother ensure that the Father be notified in the event of the child being involved in an accident or being injured so as to require hospitalisation or urgent medical treatment, or on becoming aware that the child is required to undergo surgery and providing the Father with details of the outcome of treatment or surgery.

IT IS FURTHER ORDERED THAT

1. Within seven days of the date of these orders, the Independent Children’s Lawyer shall communicate in writing with the Director of Interrelate to inform that Director of:

   a.The Orders and Notations made in these proceedings; and

   b.The basis of the need for imposition of supervision of the time spent by the child with the father.

BY CONSENT, IT IS FURTHER ORDERED

1. The Independent Children’s Lawyer shall file a typescript of Exhibit A within seven days.

2. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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.

3. The costs of the Independent Children’s Lawyer are reserved for a period of 28 days.

NOTATION

A.With the consent of the parties and the Independent Children’s Lawyer, Notation A1 is made in accordance with the document signed by the parties and/or their legal representatives and the Independent Children’s Lawyer, dated 16 August 2010, which is marked Exhibit A and placed with the Court file.

A1.It is noted that the parties do not admit to having engaged in conduct as described in orders 1.13, 1.14 and 1.15 herein.

B.Pursuant to Rule 10.15A of the Family Law Rules, allegations of the risk of child sexual abuse have been made in these proceedings and the parties and the Independent Children’s Lawyer have addressed those allegations by Consent Orders 1.4, 1.13 and 1.14.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2356  of 2008

MS ADAIR

Applicant

And

MR HOLT

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern proper parenting orders for the child E born in July 2002, who is the child of the applicant mother and respondent father.

2. The litigation was commenced nearly two years ago by the applicant mother and came before the Court for trial today.  Commendably, the parties, with the assistance of the Independent Children’s Lawyer, were able to compromise the litigation and agree upon a raft of parenting orders for the benefit of the child.

3. The parties remain at loggerheads in respect of one discrete issue, namely the information that should be furnished to the supervisor who is to supervise the time spent by the child with the father.

Competing proposals

1. For her part, the applicant mother proposes that a further order be made in terms of paragraph 6(d) of her Further Amended Initiating Application filed on 8 July 2010, which provides as follows:

   “That all time spent by the child with the father be strictly supervised by a suitably qualified supervisor who has had access to the Family Report of Ms [T] attached to her Affidavit of 21 December 2009”.

2. For his part, the respondent father proposes that an order be made in accordance with paragraph 9 set out within the document containing the other orders which are agreed between the parties.  Order 9, which is proposed by the father, reads as follows:

   “That within seven (7) days of the date of these orders, the Independent Children’s Lawyer communicate directly with the Director of Interrelate to discuss the basis for the Orders in relation to supervised time with [the child]”.

3. The Independent Children’s Lawyer does not have a firm view either way but is generally disposed to the position adopted on that point by the father.

4. The dispute between the parties on the discrete issue is to be determined by submissions from the bar table.

Conclusion

1. The mother submits that regard should be had for the contents of the Family Report prepared by Ms T, which provides at paragraph 103 as follows:

   “If supervised “identity” time is ordered it is recommended that the supervising agency receive a copy of this report and restrictions be placed around the father having physical contact with [the child] during those supervised times”.

2. The mother is keen to ensure that the contents of the Family Report are retained on file by Interrelate, the supervising entity, for future reference should the need arise.  She regards the existence of such a record on the organisation’s files as being superior to any telephone call that might be made by the Independent Children’s Lawyer to the agency conformably with the order proposed by the father.

3. Having heard the submissions on behalf of the mother, father and Independent Children’s Lawyer, I conclude that the appropriate order to be made should accord with that proposed by the father.

4. The order proposed by the mother is, as has been pointed out by the Independent Children’s Lawyer, to some extent duplicitous.  That is because the orders which have already been made by consent provide for the time spent by the child with the father to be supervised by Interrelate, which is a well known supervising agency.  Accordingly, supervision of the time spent by the child with the father will be “strictly supervised by a suitably qualified supervisor” in accordance with the wish expressed by the mother in paragraph 6(d) of her Further Amended Initiating Application.

5. As has been pointed out by the father and the Independent Children’s Lawyer, the Family Report is a sensitive document.  It is a lengthy and intricate report dealing with facts and opinions that are sensitive to the parties and the child.  The father is concerned that some aspects of the report are factually erroneous.  I am unable to determine that at this stage because the evidence has not been the subject of cross examination, given that the litigation was compromised by agreed orders.  Nevertheless, I am conscious that the father disagrees factually with some aspects of the report.

6. The whole basis of the agreement between the parties and the Independent Children’s Lawyer about the need for supervision of the child’s time with the father stems from a concern that the father poses a risk of abuse to the child.  That risk is addressed by the imposition of supervision.

7. In my view, it is a satisfactory outcome for the supervisor to be furnished with sufficient information to appraise the supervisor that the controversial issue between the parties warranting supervision is the prospective sexual abuse of the child by the father.  That can be capably conveyed to the supervisor by the Independent Children’s Lawyer without the need for the supervisor to be furnished with a complete copy of the Family Report.

8. As was also pointed out by the Independent Children’s Lawyer, notations have already been made by the Court, pursuant to Rule 10.15A of the Family Law Rules, which will alert the supervisor to the salient issue in the litigation.

9. For those reasons, I will make a further order to the following effect:

   Within seven days of the date of these orders, the Independent Children’s Lawyer shall communicate in writing with the Director of Interrelate to inform that Director of:

   a)         The Orders and Notations made in these proceedings; and

   b)The basis of the need for imposition of supervision of the time spent by the child with the father.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 16 August 2010

Associate: 

Date:  16 August 2010