Bartlett and Trent (No 2)

[2010] FamCA 692

FAMILY COURT OF AUSTRALIA

BARTLETT & TRENT (NO. 2) [2010] FamCA 692

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Bartlett

RESPONDENT: Mr Trent

INDEPENDENT CHILDREN’S LAWYER: Ms Manson

FILE NUMBER: LEC 651 of 2008

DATE DELIVERED: 30 July 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 30 July 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Binney of Parker & Kissane

SOLICITOR FOR THE RESPONDENT: Mr Gibson of John F Gibson Solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Manson of Legal Aid NSW, Lismore

Orders

IT IS ORDERED THAT

1. Paragraph 5 of the orders made by his Honour Justice Murphy on 25 March 2010 be varied so as to ORDER BY WAY OF FINAL ORDER:

   a.That the child S born … February 1997 (“the child”), shall live with the mother.

   b.That the child shall spend time with the father at all such times as might be agreed between the mother and the father in writing, and failing any such agreement, between 8.00am and 5.00pm each alternate Sunday with

   i.time to be spent in a public place and within the town area of O; and

   ii.changeover for the purposes of that time be as agreed, but so as to be consistent with any bail conditions applying to the father in respect of pending criminal charges.

2. Any Application to vary the orders made hereof today, be heard, if at all possible, before his Honour Justice Murphy.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. The Independent Children's Lawyer be discharged.

4. 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.

NOTATION:

(a)Final orders are made in this matter at a time when criminal charges are pending against the father in respect of M and following a process conducted pursuant to S 65L of the Family Law Act 1975, the reporting Family Consultant plainly considers that it is in S’s best interests for these proceedings to be brought to an end and for that to occur as quickly as possible.

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

MS BARTLETT

Applicant Mother

And

MR TRENT

Respondent Father

EX TEMPORE

REASONS FOR JUDGMENT

1. In orders made on 6 October 2009, an order was made pursuant to section 65L of the Act. Pursuant to that order, a family consultant, Mr C, consulted with S, who is now almost 13½, and each of the parents who are the parties to these proceedings.

2. Mr C spoke to each of the parents and S face-to-face on 4 December 2009, 23 February 2010, 13 April 2010 and 1 June 2010.  He also spoke with the parties and with S via telephone, primarily to conform with S’s wishes that further visits to the Child Dispute Services be avoided and contact occur by telephone, on 13, 14 and 15 July 2010 respectively.

3. The matter is returned before me consequent upon the process just described. This case might be seen as a case in which section 65L of the Act, and the process of consultation which it contemplates, has been particularly successful.

4. Each of the parties seem to me to deserve significant credit for an intelligent and child-focussed approach to the issues confronting S, particularly given the fact that S is a girl or, perhaps more accurately, young woman, who Mr C describes as being an intelligent and forthright child who he, at least, is convinced has a significant capacity for self-protection and who knows her own mind.

5. The reference to this Court’s Magellan list arises because of allegations made against the father by a now adult child of an earlier relationship of the mother’s.  S is aware of those allegations and Mr C speaks of the issues it has created between she and her elder sister, M. 

6. Notwithstanding S’s knowledge of those allegations in respect of M, S makes it very plain to Mr C that her father, as far as she is concerned, does not represent any risk to her and, again, as far as she is concerned, has not engaged in any inappropriate behaviour of any type toward her. 

7. Moreover, Mr C’s s 65L Report is redolent of S expressing an ongoing, and apparently deeply held, desire to have a continuing relationship with her father and has told Mr C consistently that she enjoys her time with her father.

8. The process conducted by Mr C embraces a change in location of the mother and S to the town of O, which on any view of it, at least as S expresses it to Mr C, has been a very positive experience for her. 

9. Again to their credit, the parties have not allowed this change to destroy the relationship that had otherwise been negotiated between them and the relationship between the father and S.  The relationship has continued whilst S and the mother have been living in O and I have no doubt that S’s very positive experiences in O have contributed to her capacity to maintain and continue the positive relationship with her father of which Mr C speaks in his report.

10. Notwithstanding those positive aspects, it is necessary to take account of the fact that S is at the moment only 13½, albeit with the characteristics and maturity that I have earlier referred to. 

11. Secondly, the Court, plainly enough, has an overriding primary obligation to protect S and to assess any risks that might pertain to her.  The allegations made by M are apparently significant and serious and are yet to be determined, at least in a criminal sense, by the criminal Courts of New South Wales. 

12. Within that context, the father apparently steadfastly maintains that he has not engaged in any improper behaviour towards M at any time and, in that respect, seeks to note that the allegations made in respect of him are historical, pertaining to events alleged to have occurred some 12 years or so ago.

13. In that context it is understandable, from his perspective, that he seeks time greater than that which the current order provides (which restricts him to day time contact on Sundays in public areas of O each second weekend), so as to enjoy the benefits of a meaningful relationship with his daughter, including, of course, overnight time and time which involves more extensive activities than those which can be engaged in within the restrictions inherent in the order. 

14. Nothing in earlier material, nor anything in the report of Mr C, would indicate that S’s mother is anything other than an appropriately caring and protective person towards her.  There is no evidence before the Court that would suggest that the mother would engage in any behaviour (or any omissions) which might place her daughter at risk. The material before the Court would suggest that she is an appropriate mother who would make decisions based on S’s best interests, including decisions appropriate for her protection in the context earlier described. 

15. The parents have, commendably, been able to come to an agreement about various changes in the arrangements for time between the father and S, and they have included, contrary to the position advanced by the mother in her initial application filed in the Court, more extensive time than that application contemplates and have also encompassed the changes that I have earlier described.  It is particularly important to note that for this 13½ year old child, the current arrangements appear to be working well.

16. In particular, those arrangements allow S to accommodate some part-time work with her mother, I gather at a market in O, and allow S to spend time with her apparently solid group of newfound friends in the O area that plainly contribute to her happiness with her current situation. 

17. Mr C cautions that the father needs to be cautious about increasing time, given S’s continued expressed satisfaction with the quantity of time that the current orders currently provide.  Having said that, it is submitted on behalf of the father that special occasions (he instances the forthcoming Agricultural Show in Brisbane and other such events), provide the opportunity for positive time between he and S to occur, but outside the bounds of the current order.

18. All of the indications before me suggest that the mother would be agreeable to sensible and practical proposals in that respect that accord with her assessment of S’s best interests and, in particular, any need perceived by her to protect S from any prospect of untoward behaviour. 

19. With that in mind, the Court proposed to each of the parties that, if the current orders were varied by the insertion of the capacity for the two parties to agree upon additional periods of time, and for that to be incorporated within final orders, then a balance could be struck between all of the matters embraced in the statutory Considerations relevant to S’s best interests.

20. Such an order could accommodate her current, apparently strongly expressed, views to Mr C. It could accommodate protection of her, in the context of the current criminal proceedings which remain against the father, but would also introduce significant flexibility in the arrangements that may not be present in the orders in their current form. Furthermore, such an order would achieve something which Mr C signifies as being very important, and with which, based on the evidence before me, I respectfully agree, namely, the orders would bring to an end for S, not only the process pursuant to section 65L in which she is engaged, but the notion that proceedings in this Court might continue to, as it were, hang over her head.

21. Accordingly, I consider it in S’s best interests to make orders in terms of those proposed earlier by me which, in essence, insert the capacity for the mother and father to agree upon orders outside the specific terms of those previously ordered.

22. It is currently not possible for anyone to say when the current criminal proceedings faced by the father will conclude.  That presents difficulties for him. I am aware that, if final orders are made by me today, a potential detriment is that the father might subsequently confront what is commonly known as the Rule in Rice & Asplund in the event that he later sought to vary those orders and agreement with the mother was not possible. 

23. I propose to cover that potential difficulty by ordering that any subsequent application in these proceedings be heard, if at all possible, by me, and for these reasons to be published and sent to each of the parties, and that the facts and circumstances directly relevant to the making of final orders at this time and in what might be described as somewhat unusual circumstances be brought to the attention of the Court in the event that any later application to vary the orders that I make today is made.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date:  10 August 2010