Beattie and Simpson

[2008] FamCA 424

FAMILY COURT OF AUSTRALIA

BEATTIE & SIMPSON [2008 ] FamCA 424

FAMILY LAW – CHILDREN – With whom a child spends time until interim proceedings can be heard

APPLICANT: Ms Beattie

RESPONDENT: Mr Simpson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: NCF 795 of 2005

DATE DELIVERED: 13 May 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Mullane J

HEARING DATE: 13 May 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Flynn of Debbie Flynn & Associates

SOLICITOR FOR THE RESPONDENT: Mr Winder as Agent for Patterson Byfield & Bryen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke of Legal Aid Commission of NSW

Orders

1. The mother’s Application in a Case filed on 12 May 2008 for interim residence of the 3 children C born … February 1997, M born … October 1998 and S born … August 2000, is adjourned to 4 June 2008 at 10am for a 2 hour hearing by the Judicial Registrar.

2. The father is restrained from showing the single Expert’s report to his step-mother or any person other than his lawyers in the proceedings.

3. Pending further order the children are to spend time with the mother.

4. Pending further order the mother is to arrange for the children C and M to attend a public school.

5. Pending further order the mother with the assistance of the independent lawyer for the children must seek to obtain copies of records of the last school S attended, use those records to decide in consultation with the independent lawyer for the children whether to obtain a further assessment of S’s educational and behavioural needs or, whether without such an additional assessment, to enrol S in a school.

6. Upon such decision being made the mother must proceed regarding such enrolment or further assessment.

7. For the purposes of order 5 the mother has permission to copy any records produced on subpoena from any school S has attended.

8. By consent and pending further order the mother is to facilitate reasonable telephone communication between the children and the father including each Monday and Friday between 6pm and 6.30pm.

9. Pending further order each party is restrained from discussing the contents of the report of Ms E with any of the children or in the presence or hearing of any of the children or permitting anyone other than the independent lawyer for the children to do so.

10. The parties and the independent lawyer for the children have permission to inspect the documents produced on subpoena by the NSW Police.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 795 of 2005

MS BEATTIE

Applicant

And

MR SIMPSON

Respondent

REASONS FOR JUDGMENT

1. In these proceedings there is a single expert’s report that was released to the parties yesterday and the father probably saw it first today or maybe last night. 

2. The report raises some very serious concerns about the children’s welfare while residing with the father and recommends that the children be removed from the father’s care. 

3. There has not been an opportunity for the father to introduce any evidence to refute some of the matters in the report that weigh in favour of those recommendations, nor to argue in dispute of some of the reasons that the report writer gives for that recommendation.  So the decision today is based purely on the risk to the children if the report writer’s conclusions and recommendations in that regard are valid.  They may be invalid. 

4. But on the basis of that evidence, I make an order, as the independent lawyer for the children recommends, for the children to spend time with their mother until the application of the mother for interim residence is determined. 

5. There are various other issues that I will deal with as I go through it.  So the first order will be in relation to the mother’s application for interim residence of the three children C, born in February 1997, M, born in October 1998, and S, born in August 2000, is adjourned to 4 June 2008 at 10 am for a two-hour hearing by the Judicial Registrar. 

6. The report has been released to the father.  The father’s stepmother is in intensive care with some very serious health problems.  There is material in the expert’s report which attributes some of the problems that she alleges exist in the father’s household to the father’s stepmother.  It is not appropriate that the father make the report available to his stepmother.  She is not a party to the proceedings.  I will make an order that the father is restrained from showing the single expert’s report to his stepmother or any other person other than his lawyers in the proceedings. 

7. In respect of the arrangements for the children pending the hearing of the mother’s application, I will order that pending further order the children are to spend time with the mother. 

8. It will be three weeks and one day I think until the hearing of the interim application.  I think it is in the children’s interests, at least C and M, that they attend a school in that period.  It is possible that the children bear some negative feelings towards their mother and may be quite confused and concerned about the present change in their care arrangements.  I think it is much more stabilising for them to be attending a school and preoccupied during the day, at least on school days, by the activities there.  I will therefore order that pending further order that the mother is to arrange for the children C and M to attend a public school. 

9. In relation to S, S has some serious problems, which have led to previous suspension from a public school.  I understand that he suffers from ADHD and that he also has displayed oppositional defiance disorder I think.  He has not been attending school in recent times.  His father has been responsible for his formal education by way of a distance education program.  It seems that it would be dangerous to require the mother to enrol S in a public school at this stage, unless the school has available to it assessment records adequate to determine whether his placement is appropriate and whether the school has the resources and staffing that can cope with S’s needs.  I think these issues, should be dealt with by the mother in conjunction with the children’s representative.  I will order that pending further order the mother with the assistance of the independent lawyer for the children is to seek to obtain copies of records of the last school S attended and use those records to decide whether to obtain further assessment of S’s education and behavioural needs or without such an assessment is to decide whether to enrol S in a school. 

10. I will order that upon such a decision being made the mother must proceed regarding such enrolment or further assessment.  That would be done in concert with the lawyer for the children in terms of deciding, particularly if there is a further assessment to be done, how that will be achieved. 

11. In order that the mother can locate any assessment that has been done I will make an order that for the purposes of order 5 the mother has permission to copy any records produced on subpoena from any school that S has attended. 

12. Order 8 will be by consent pending further order the mother is to facilitate reasonable telephone communications between the children and the father, including each Monday and Friday between 6 pm and 6.30 pm.  The order I propose, subject to what everyone says, is pending further order each party is restrained from discussing the contents of the report of Ms E with any of the children or in the presence or hearing of any of the children or permitting anyone, other than the independent lawyer for the children, to do so.  

13. I will make an order that the parties and the independent lawyer for the children have permission to inspect the documents produced by the New South Wales police. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate: 

Date:  13 June 2008