Barker and Barker

[2007] FamCA 1279

FAMILY COURT OF AUSTRALIA

BARKER & BARKER [2007] FamCA 1279

FAMILY LAW – CHILDREN – With whom a child spends time – Child’s views

Family Law Act 1975 (Cth)

APPLICANT: Mr Barker

RESPONDENT: Ms Barker

INDEPENDENT CHILDREN’S LAWYER: CE Family Lawyers

FILE NUMBER: MLF 2008 of 1996

DATE DELIVERED: 28 September 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 14 September 2006,
2 February 2007, &
28 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Geoffry Bonsall – Maeve O’Brien & Associates

COUNSEL FOR THE RESPONDENT: Ms Dukic

SOLICITOR FOR THE RESPONDENT: Rowe Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Curtain

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

CE Family Lawyers

Orders

1. That all previous Orders with respect to the two children of the marriage namely, J and G, both born … July 1995 be dismissed.

2. That the husband and wife continue to have the equal joint responsibility for the said children.

3. That the children continue to reside with the wife.

4. That the husband have time with the children as follows: -

   (a)       Every third Saturday between 9.30am and 2.30pm;

   (b)      From 10.00am until 3.00pm each Father's Day;

   (c)      From 10.00am to 3.00pm each Boxing Day (26 December of each year);

   (d)      By telephone/land line between 7.00pm and 7.30pm each Wednesday;

   (e)      Otherwise as agreed between the parties.

5. That subject to the provision of a grant of aid, the Independent Children's Lawyer shall retain a supervisory brief in this matter for a period of 12 months from the date of these Orders and shall be at liberty to make such enquiries as he believes appropriate of the children, the parties and any teacher or professional involved with the children.

6. That changeovers of the children between the parents shall be conducted at B Family Support Centre in N save, that in the event that B is closed for any reason on a designated day then, changeovers should occur at McDonalds in T.

NOT BY CONSENT

1. That the children shall not attend the husband's home or any other residence without the presence of another adult in addition to the husband.

BY CONSENT

1. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the 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.

2. All existing Applications are otherwise dismissed and the case removed from the list of cases awaiting finalisation.

3. A transcript of my reasons given this day shall be produced and placed on the Court File.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2008 of 1996

MR BARKER

Applicant

And

MS BARKER

Respondent

REASONS FOR JUDGMENT

1. I am asked to make a very small but important decision today about 12‑year‑old twin girls.  The husband's time with his daughters has been severely interrupted.  There were apparently some allegations of sexual abuse raised when they were very young, and his time with his daughters since then has been fraught.

2. The case has been in front of me for quite some time now.  I first saw the parties in September 2006, about a year ago.  I had the assistance then of quite a detailed report by a Family Consultant.  Even though it was a preliminary report it was extremely child focused in view of the girls' ages.  They were 11 then.  It was a report of Ms Y, dated 20 July 2006.  It gave me quite a good foundation, having discussed the matter at that time then with the parents, to set in place some temporary orders.

3. Since then, the children have been seeing their father with supervision, and they have expressed a number of things.  They have expressed the desire not to have a supervisor present.  They have obviously detected what a false setting that is, in order to further their relationship with their father.  They have reflected in their views that their relationship with their father has been interrupted.  They do have some anxiety and nervousness around that.  The parents have different perspectives as how to the children reached those views but at these ages they are clearly embedded or entrenched views.  It might be what has occurred in the past as alleged by the mother.  It might be what they have heard in their mother's household.  It might also be, or there might be a contribution, of how they perceive their father, because he is genuinely concerned about pursuing his relationship with them, and genuinely upset at the interruption to the relationship.  They reflected in what they said to Ms Y that they feel that anxiety or angst from him, and they find it uncomfortable.

4. The girls have expressed their views that they do want to see their father on a slightly less regular basis than previously.  That might simply be consistent with the age and stage that they are at.  Any parent knows that young adolescents become more self-absorbed and probably want more freedom in terms of their weekend time, than younger children.

5. In any event, the parents wisely reached an agreement today as to how to move things forward with the children spending unsupervised time with their father.  The only issue for me remains whether during that time the children can be taken by their father to his home or to any other home without another adult being present. 

6. The Husband says, "Look, it's now time that that should happen.  They were coming to my home sometime in the past and were enjoying playing table tennis and other innocent activities like that," and really the husband's point of view is this is the only way to bring some reality to the relationship and to move it forward.

7. The wife's perspective is that the children are not comfortable with it.  Her perspective is well supported by what the children have told the Family Consultant, and how the Family Consultant has analysed and reported what the children have said.  The Independent Children’s Lawyer has actually met with the children several times.  He is an experienced Independent Children’s Lawyer.  He has commented on the progress the children are making in their relationship with their father.  That is reflected in the proposed orders.  But today the Independent Children’s Lawyer also asks me to leave in place the restriction on going to the father’s home without another adult being present - first, from the point of view of moving in a respectful way within the children's own comfort level and secondly, to ensure that there is some degree of protection from any further allegations arising.

8. I have made it clear in the course of discussion that I do propose adopting the course as proposed by the Independent Children’s Lawyer with the hope that things may evolve into the future.  What is being ordered here is a change for these children and I hope that it will go sufficiently well, and that their level of comfort will keep improving, so that the parents then will need to be guided by the children's views.  I do not know any parents who are going to be able to put an immovable wall in the face of two teenage girls saying strongly that they seek a particular course.  If they say, "This is ridiculous that someone has to be at dad's" - and I mean probably in a year or so's time - then there is going to have to be further discussion, not litigation but discussion.

9. What you will both have attached to the court orders that I make are two notices:  one is describing to you how you must comply with court orders.  If you do not, it is a contravention that can be treated very seriously by the court with punishments including imprisonment.  The other piece of paper attached to the orders will tell you how important it is, not just to come back to court if there is an issue, but to use the terrific community resources whereby you and the girls can have some discussion, if there is a need to slightly modify the orders because the girls are older and they want that to occur … that is if you cannot agree by yourselves.

10. I am going to leave the notation there provided we make sure it does make sense.  I just want to have a good look at it because it was no doubt drafted in court and needs some tidying up.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate

Date:  28 September 2007