Bartlett and Trent

[2010] FamCA 291

FAMILY COURT OF AUSTRALIA

BARTLETT & TRENT [2010] FamCA 291

FAMILY LAW – CHILDREN – Interim Orders – Orders exist that the Father spends supervised time with the child on alternate Saturday’s – The Mother and children have relocated from NSW to southeast Queensland – The nominated supervisor’s are no longer available due to the relocation – Whether orders might be made removing the need for supervision, in lieu of the father only spending time with the child during the day, in public areas – Whether this proposed order meets the s 60CC requirements – Weight given to wishes of the parties, and wishes of the child – Order made

Goode & Goode (2006) FLC 93-286

Family Law Act 1975 (Cth) ss 65L, 60CC
Family Law Rules 2004 R. 10.15A

APPLICANT: Independent Children’s Lawyer

FIRST RESPONDENT (MOTHER): Ms Bartlett

SECOND RESPONDENT (FATHER): Mr Trent

INDEPENDENT CHILDREN’S LAWYER: Ms Manson

FILE NUMBER: LEC 651 of 2008

DATE DELIVERED: 25 March 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 25 March 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT ICL: Ms Manson of Legal Aid NSW

SOLICITOR FOR THE 1^ST RESPONDENT

(THE MOTHER) :

Mr Comerford of Parker and Kissane

SOLICITOR FOR THE 2^ND RESPONDENT

(THE FATHER):

John F. Gibson Solicitors (excused from appearing)

Orders

IT IS ORDERED THAT

1. The hearing listed for 18 May 2010 is vacated.

2. The matter be listed for further mention before the Honourable Justice Murphy at 11.00am on 10 August 2010 in the Brisbane Registry of the Family Court of Australia, and all parties are granted leave to attend by phone.

3. In the event that the parties reach agreement or seek consent directions, they shall be at liberty to forward minutes of consent, by way of joint communication forwarded to the Associate to Justice Murphy by email attaching a copy of the minutes of consent, and if considered appropriate, such orders shall be made by consent in chambers without the necessity of any appearance by the parties, and any future dates in respect of such orders will be vacated.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Orders (2), (3), (4) and (5) of the Consent Orders made on 6 October 2009 be discharged.

2. The child S born … February 1997, spend time with the father on one day of each alternate weekend between 8.00am and 5.00pm:

   a.The father shall text the mother to advise of the preferred day for contact (Saturday or Sunday) within 24 hours of exercising that time;

   b.The time spent remain in a public place and within the town area of O;

   c.Changeover for the purposes of the father spending time, shall occur as agreed between the mother and the father, but only so as to be consistent with any bail conditions applying to the father in respect of the charges currently faced by him.

IT IS FURTHER ORDERED THAT

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 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.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  LEC 651 of 2008

INDEPENDENT CHILDREN'S LAWYER

Applicant

And

MS BARTLETT

1^st Respondent

And

MR TRENT

2^nd Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The decision about the best interests of S, born in February 1997, is currently pending before the court, and in respect of those proceedings, the matter is being managed within the court’s Magellan listings.

2. On 6 October 2009, orders were made by consent whereby the child spent time with her father each alternate Saturday, between 9 am and 5 pm.  The orders provided that the time that the child spent with her father be in the presence of one of a number of nominated people.  At that time, the parties were living in the Northern New South Wales area. 

3. Since that time, the mother and S and the mother’s older child, M, have moved to O in southeast Queensland.  That move, obviously, involves S living some distance away from her father, who continues to live in the New South Wales North Coast region.

4. The move to O occurred, in effect, by agreement between the parties. The family consultant, Mr C, advised the court that the father considered that a move to O would be appropriate for the child.

5. Mr C has prepared a Children’s and Parents’ Issues Assessment report, dated 11 June 2009, and, pursuant to the orders made on 6 October 2009, has been seeing the child and, as necessary, the parents, pursuant to an order made by consent, pursuant to section 65L of the Act. Mr C advises that he has been speaking to the child, in accordance with that order, approximately every six weeks.

6. The current application arises at the instance of the independent children’s lawyer, because the move to O by the mother and the child means that the order’s nominated supervisors are unable to continue that role because of the distance involved.  The independent children’s lawyer raises for consideration whether orders ought be made discharging the provisions of the earlier orders relating to the occurrence of the time between the child and her father and removing the need for supervision of that time. In lieu, orders are suggested to the court that would see the father spending time during the day with the child in a public place and within the town area of O between the hours of 8 and 5 on one day each alternate weekend. 

7. The father indicates his agreement with that course of action.  More importantly, the mother also indicates her agreement with that course of action, the independent children’s lawyer supports it, and Mr C considers it appropriate.

8. Notwithstanding all of those matters, the court retains an independent obligation to decide that such an order is in S’s best interests.  The reason that the consent orders provided as they did is because assertions are made by the mother’s child, M, who is now a young adult, that some 12 or so years previously, the father engaged in inappropriate sexual conduct with her when she was aged about 10. 

9. Those allegations form the basis of criminal charges that have been preferred against the father, the committal proceedings for which are due to be held in June, and which the father’s solicitor, in correspondence to the court, advises that, all else being equal, a trial would not occur before about September.

10. Plainly, then, the primary consideration referred to in s 60CC, which obliges a court to consider protecting children from harm, is squarely raised. As has been made clear by decisions of the Full Court – for example, in particular, Goode & Goode (2006) FLC 93-286 – the fact that proceedings of this type are conducted within a truncated environment in which it is not possible to make findings about contested issues of fact does not remove the responsibility on the court to consider the Objects, Principles and Considerations enshrined in the legislation.

11. The basis of the current application, though, can be seen in the other primary Consideration in the Act: namely, the benefit for S in a meaningful relationship with her father. In that respect, it is significant, particularly in light of the fact that Mr C has been conducting interviews with the child as part of a section 65L process, that Mr C is able to tell the court that the child presents as an emotionally mature and sensible child who would “be expected to have a reasonable level of self-protective skills.”

12. As an instance of that, and an instance, perhaps, of the degree of risk apprehended by the mother if the child is in the unsupervised care of her father, Mr C advises the court that during the process of conducting interviews with the family, the mother has been quite content to allow the child to leave the interview premises with her father, alone, while the mother was speaking to Mr C.

13. Mr C is very clear about the chld’s views and the impact that those views have on the nature of the relationship with her father, the degree of attachment she has to her father, and what she herself might be seen as regarding as a meaningful relationship with him.  Mr C says in the Children’s and Parents’ Issues Assessment report:

    It is clear that [the child] wants to re-establish her ability to spend time with her father.   It is also clear from their behaviour on the day of interviews that [the mother] and [the father] seem to be able to agree that [the child] can spend time with [the father] during the day in public places.

14. I pause to observe that that is, in broad terms, precisely what the orders sought before me provide.  Mr C goes on:

    I believe it is likely that [the child], if she isn’t able to recommence spending some time with her father, will take matters into her own hands, such is the strength of her attachment to [the father].  It may be an option for the parents to find mutually agreeable interim arrangements, such as those above, for [the child] to interact with her father until such time as determinations are made about whether [the father] does pose a risk to [S].

15. It is, in my view, insufficient to simply record that there might be what is regarded as a “unacceptable risk” without attempting to examine, (to the extent that it is possible within proceedings of this type), the nature of any such risk as might be presented and its extent. 

16. In this case, the risk arises from the prospect of the father posing a risk of sexual harm to the child by reason of allegations made against him by a young adult woman as to events which occurred some 12 or 13 years previously, when she was aged about 10.

17. No allegations are made on any evidence known to any of the parties or Mr C of any untoward conduct alleged in the intervening 12 of 13 years toward that child, toward any other child, or, in particular, toward S.

18. Moreover, Mr C believes that S is a very forthright child who would have no hesitation in speaking to her mother about matters that concern her.  She has indicated that she very much likes the school she is attending at the moment in O, and Mr C has little doubt that she would be able to speak to teachers about any matters that concerned her. 

19. Furthermore, the s 65L order provided for in the orders of October 2009 continues to run, and Mr C proposes to continue working with the family in the approximately six-weekly cycle to which earlier reference has been made.

20. Mr C identifies the nature and the extent of any potential risk to arise from the fact that S, he thinks, does not really believe that her father has done the things to M, which M alleges, firstly, and secondly, that the orders contemplate time being spent alone between the father and S. 

21. In terms of ameliorating those identified risks when regard is had to their nature and extent, the matters earlier referred to, identified by Mr C, are important, in my view, as is the fact that the orders provide for the time to occur only during the day and in public places.

22. Furthermore, there is no material before the court, or any suggestion of any material before the court, that the mother is anything other than a loving and protective mother towards S.  The mother’s indication of agreement to orders in the terms as specified, in circumstances where she is represented by a solicitor and has been represented by a solicitor, is, in my view, a reasonable indication of the mother’s own assessment of the nature and assessment of any risk posed by the father to the child.

23. These issues should not be seen in the abstract.  The issue of risk to the child is not necessarily the same, by reference to the same set of facts, as might be a risk to another child. S’s particular circumstances and her particular personality characteristics ought, in my view, be taken into account in assessing the nature and extent of any potential risk posed to her by her father. 

24. In that regard, Mr C is of the view that not only is S very strong-minded, but has been prepared to express her strong-mindedness overtly.  As an example, when Mr C was speaking to her about time that she might desire to spend with her father, in circumstances where she made it abundantly clear that she seeks to have a regular meaningful relationship with him and that her attachment to him is very close, she made it very plain that she did not wish to see him every week, but rather fortnightly, because her new living arrangements involved a number of age-appropriate activities and the like that she wanted to fit around time spent with her father. 

25. That too, as it seems to me, is a significant matter in pointing to the correctness of Mr C’s view that the child has “better than adequate protective skills” in and about any interaction she might have with her father.

26. It seems to me, when all of the primary and additional considerations directly relevant to S in this matter are taken into account, that her best interests point to her spending regular meaningful time with her father and that such risk as is immediately evident on the material that needs to be met in that respect can be met by her spending time with her father during the day only and in a public place within the area of O where she lives.  The orders so provide, and I am prepared to make them in her best interests.

27. It may not be strictly correct to say that the orders are made by consent, although it is apparent that both mother and father are prepared to allow those orders to be made in the child’s best interests. For the sake of completeness, lest the matters might be seen as orders made by consent, it seems to me that the matters to which I have made reference in these short ex tempore reasons satisfy the provisions of Rule 10.15A of the Family Law Rules 2004 and provide an adequate foundation for explaining how the court is satisfied that any such risk evident on the evidence before the court is met by the orders which are made.

28. I order accordingly.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  21 April 2010