Balchin and Algar

[2015] FCCA 3547

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALCHIN & ALGAR [2015] FCCA 3547

Catchwords:
FAMILY LAW – Interim parenting orders – children were burned by mother’s partner – risk factors.

Applicant: MR BALCHIN

Respondent: MS ALGAR

File Number: MLC 3686 of 2015

Judgment of: Judge Harland

Hearing date: 10 December 2015

Date of Last Submission: 10 December 2015

Delivered at: Melbourne

Delivered on: 10 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Gardiner

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr Boden

Solicitors for the Respondent: Starnet Legal

Counsel for the Independent Children's Lawyer: Mr MacFarlane

Solicitors for the Independent Children's Lawyer: McKean Park

ORDERS

1. The proceeding is adjourned for mention on 26 February 2016 at 9.30am.

2. The parents are to enrol in the contact centre that is closest to their respective homes within 7 days.

3. The children X born on (omitted) 2009, Y born on (omitted) 2009 and Z born on (omitted) 2012 (‘the children’) are to continue to spend time with the mother as they are currently.

4. Additional supervised time may occur between the mother and the children, with the supervisor to be agreed between the parties.

5. Pursuant to section 62G(2) of the Family Law Act 1975 (Cth), the mother and the father and the children attend upon a family consultant nominated by the Regional Coordinator of Child Dispute Services in the Melbourne Registry of the Federal Circuit Court of Australia for the preparation of a family report to be given to the court on or before 19 February 2016.

6. The family report deal with the following matters:

   (a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;

   (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the family consultant considers important to the welfare or best interests of the children.

7. The mother and the father comply with all reasonable directions as to attendance upon the family consultant as and when required by the consultant.

8. Within seven (7) days of being notified of the identity of the family consultant, the solicitor for each of the parents (or, if unrepresented, then the parent himself or herself) deliver or cause to be delivered to the family consultant copies of the following documents:

   (a)all relevant applications, responses and affidavits filed by that parent in these proceedings; and

   (b)any intervention or restraining orders currently in force.

9. The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the Independent Children’s Lawyer.

10. If either parent or the Independent Children’s Lawyer requires the relevant family consultant to attend for cross examination at the final hearing then that parent or the Independent Children’s Lawyer give the relevant family consultant seven (7) days’ notice in writing.

11. Upon the family report being provided to the court, the court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

12. Unless a party objects, in writing, within 14 days of the date of releasing the family report, the court may provide copies of the family report to the following, if the court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a children’s court;

    (b)a child protection authority;

    (c)a state or territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

13. Unless otherwise ordered, no person release the family report, or provide access to the family report, to any other person.

14. The matter be adjourned to 18 July 2016 at 10.00am for final hearing (with an estimated hearing time of 3 days).

15. The parties file and serve one affidavit of evidence in chief and one affidavit of each witness including expert witnesses, complying with r.15.28 of the Federal Circuit Court Rules 2001, upon which they intend to rely at trial on or before 28 days before the final hearing.

16. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Circuit Court Regulations 2012.

17. At least 72 hours prior to the trial each party provide to the other party/parties and to the Associate to the Judge an Case Outline document as follows:

    (a)a list of the documents to be relied upon;

    (b)a brief chronology;

    (c)an outline of contentions with respect to:

    (i)whether the presumption of equal shared parental responsibility applies (s.61DA),

    (ii)the considerations relevant to equal time and substantial and significant time (s.65DAA);

    (iii)each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

    (iv)other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

    (v)any other matters relevant to the decision; and

    (d)a statement of the precise orders sought

18. That the applicant’s solicitors notify the expert of the trial listing and arrange the expert to be available to give evidence at the beginning of trial and confirm with my chambers accordingly.

19. Each party provide a copy of their trial Affidavits to the expert witness at least seven (7) days prior to trial.

AND THE COURT NOTES THAT:

1. If possible, the children should have two visits with their mother of 4 hour duration each week.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3686 of 2015

MR BALCHIN

Applicant

And

MS ALGAR

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. Certainly in this matter, I think there is a risk to the children if they are returned to the mother’s care. I think that risk is not an isolated one, and it is not based on one factor alone.  There is a picture in this matter that is of concern to me on several bases, because it appears to me that there is a certain level of neglect of the children’s care when they have been in the mother’s household. 

3. That does not mean that that is deliberate or malicious, but there seems to me to be a level of sufficient concern, bearing in mind that this is an interim hearing and the evidence has not been tested, but contrary to any suggestion that it is about what is not fair, I am having to weigh up the factor that, yes, it may be that the mother has been the primary carer for the past few years but is that the answer - that the children return to her care?  No because it seems to me that there is enough of concern in several categories. 

4. Of course, the most immediate concern are the burns.  It is clear that that was a deliberate, consistent injury done to all three children.  It is clear that it was the mother’s partner who did that.  I do not accept the submissions that the mother acted protectively straightaway.  The material shows an inconsistency and the timing of her making strong statements about not approving of that really comes in the face of irrefutable material from the Department of Health and Human Services and the hospital. 

5. It raises concerns about her judgment with respect to that issue, and priorities. What is also of concern is the basic care of the children.  The hospital notes, it is of concern that there seems to be issues about the children being sufficiently well-nourished, the vitamin deficiencies, and certainly one of the children missing 30 per cent of school.  The mother’s counsel says she has not had the opportunity to show that she has got a good explanation for that, and that the child has always been taken to a doctor. 

6. Even if that is shown to be the case, it still raises a concern to me about as to whether that has really been effective.  It is just not normal for children to miss that much school and to simply get taken to a GP.  That indicates to me that something more serious is going on. I anticipate that there will be material subpoenaed or material provided both from the school and also from medical practitioners, to look into that issue. 

7. It raises real concerns for me about these children’s physical welfare, if they were returned to the mother’s care.  I also accept the father’s and the ICL’s submissions that the time needs to continue to be supervised because these are issues of neglect and lack of insight into the needs of these children that if I was to accede to the mother’s request for her to have unsupervised significant time, does not address those issues.  It is not simply about these children missing a couple of medical appointments.  It goes much deeper than that. 

8. This Court is obliged to make orders that are in these children’s best interests.  While it may well be that it is difficult for the children in the short term to have limited time with their mother, given the time that they have spent, I have to weigh up making sure that these children are protected from harm.  There are simply not the protective concerns in the father’s care, whereas there are in the mother’s. 

9. I also agree with the ICL that it would be ideal if the children were spending more frequent time with the mother, but it seems to me on the material that the issue really is the availability of the supervisor.  It is quite a burden to ask a supervisor who is not a professional to provide supervised time.  There certainly seems to be a dispute between the parties as to when supervision has not taken place and if that is the fault of the mother or the father, or whether it is simply that there have been times when the supervisor has not been available.

10. It seems to me that it would be appropriate for the parties to enrol with a contact centre, to see if it is possible to get some supervised time through that forum as well, but also the time to continue as it is currently.  The issue would then be is there anybody else who is willing and able to step in to offer some supervision at other times? Ideally it would be good if the children could have a couple of times a week with their mother.  I am not suggesting that there be overnight time, but suggesting that ideally it would be good if there could be more frequent time than there is currently. 

11. I also certainly agree with the mother’s counsel’s submission that the father needs not to be present.  I know that he has given evidence that he has been locked away in another room, but I think that probably just makes the situation a bit more difficult, probably not just for the mother but the supervisor as well. Also, if the children know he is around somewhere else, it just does not invite the same scenario. 

12. In my view, at this stage, the protective factors outweigh the issues of the children being separated from the person who has been their primary carer.  For those reasons, I am not going to change the spend time arrangements that are currently in place, except to provide an additional order for the parents to enrol in a contact centre. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  18 January 2016