Bilney and Brisco and Anor (No 2)

[2011] FamCA 726

FAMILY COURT OF AUSTRALIA

BILNEY & BRISCO AND ANOR (NO 2)	[2011] FamCA 726
FAMILY LAW - CHILDREN – interim orders – with whom a child spends time – application by the mother seeking to spend time with the children – whether such time should be supervised – where there are concerns about the mother’s ability to protect the children from the dispute between the parties – orders that the mother’s time with the children continue to be supervised.

Family Law Act 1975 (Cth)

APPLICANT: Ms J Bilney

RESPONDENT: Mr Brisco

INTERVENOR: Ms Y Bilney

INDEPENDENT CHILDREN’S LAWYER: Adey Lawyers

FILE NUMBER: ADC 6474 of 2007

DATE DELIVERED: 5 September 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 5 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Not applicable
SOLICITOR FOR THE APPLICANT:	Mother in person

COUNSEL FOR THE RESPONDENT:	Not applicable
SOLICITOR FOR THE RESPONDENT:	Father in person

COUNSEL FOR THE INTERVENOR:	Not applicable
SOLICITOR FOR THE INTERVENOR:	Maternal grandmother in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Cocks
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Adey Lawyers

Orders

UPON NOTING the necessity for this Court to understand that the Criminal proceedings against the maternal grandmother and the father have been resolved prior to the listing of this matter for trial in this Court
IT IS FURTHER ORDERED THAT:-

1. Further consideration of the proceedings be adjourned to 2.15 pm on Monday 17 October 2011 before the Honourable Justice Burr (1 hour allowed).

2. On or before 4.00 pm on 19 September 2011 the father do file and serve an Affidavit annexing a copy of the letter dated 3 June 2011 addressed to the father from the Independent Children’s Lawyer requesting drug screen testing and a copy of the results of that drug screen testing dated 7 June 2011.

3. The Application in a Case filed by the mother this day (5 September 2011) (document 222 on the Court file) be and the same is hereby dismissed.

4. In the event that the mother wishes to promote alternative supervisor(s) of her time to be spent with the children then on or before 4.00 pm on 19 September 2011 the mother do arrange for her proposed supervisor(s) to:-

   (a)    file and serve an affidavit indicating his / her willingness to act as a supervisor;

   (b)    receive a copy of the Legal Services Commission pamphlet on the role and responsibilities of supervisors;

   (c)    annex a copy of the aforesaid Legal Services Commission pamphlet to his / her aforesaid Affidavit, indicating that he / she has read and understood same;

   (d)    provide all of his / her relevant contact details to the Independent Children’s Lawyer;

   (e)    make arrangements to meet with the Independent Children’s Lawyer in order that an assessment as to his/her suitability to act in the role of supervisor can be made by the Independent Children’s Lawyer prior to the adjourned date for hearing and recommendations or otherwise made to the Court on the adjourned date;

   (f)     be in personal attendance on the adjourned date to enable the Court to assess his/her suitability or otherwise to act as a supervisor.

5. In the event that the mother wishes to promote any further allegations in these proceedings as against the father then she do file and serve an affidavit detailing those allegations on or before 4.00 pm on 19 September 2011.

6. At the earliest opportunity the Independent Children’s Lawyer do make enquiries of the children’s school to determine whether or not any of the allegations made orally by the mother to the Court this day can be supported and do file and serve an Affidavit recording the details and outcome of those enquiries and investigations.

7. The Independent Children’s Lawyer use his best endeavours to arrange further periods of supervised time for the mother at Contact Centre 1 pending the appointment of any independent supervisor(s) of her time to be spent with the children.

AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT, THAT:-

1. The children C born … April 2005 and J born … March 2006 live with the father.

2. Paragraph 2 of the Orders made on 15 March 2011 is suspended in relation to the maternal grandmother spending time with the said children.

3. The mother spend time with the said children at Contact Centre 1 on a fortnightly Sunday basis on such dates and for such periods as Contact Centre 1 is able to facilitate.

IT IS NOTED that publication of this judgment under the pseudonym Bilney & Brisco and Anor (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 6474  of 2007

Ms J Bilney

Applicant Mother

And

Mr Brisco

Respondent Father

And

Ms Y Bilney
Maternal grandmother

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I have before me a continuation of lengthy and bitterly contested proceedings between the parties.  Those proceedings were commenced initially by Application filed in the Federal Magistrates Court nearly 4 years ago on 21 December 2007.  Now some 4 years later exactly 223 documents have been filed by the parties.  

2. Today’s proceedings commenced in an optimistic sense in that there was an application by the mother, supported by an Application in a Case handed to the Court this day, that all of the numerous Applications for Contravention and Applications in a Case that she had filed be dismissed in order that the proceedings could be more rapidly advanced to trial.  In that Application in a Case though, she also sought an order that the orders of 20 November 2008 be reinstated to the effect that there be shared care of the children C born in April 2005 and J born in March 2006.

3. Her application was understandably prompted in a sense by the fact that all of the times that had been arranged for her to see her children at Contact Centre 1 had come to an end.  No other visits had been allocated to her.  She seeks an order from the Court essentially that she be entitled to have unsupervised time with her children or in the event that that is unsuccessful, time with the children supervised by her sister. 

4. The application of the mother in that regard is opposed by the father and is not supported by the Independent Children’s Lawyer.  It is the view of the Independent Children’s Lawyer that any time that the mother spends with the children ought to continue on a supervised basis for the time being and potentially until trial when all of the issues can be canvassed at length in the evidence given to the Court.

5. I have now had an opportunity of reading a report of the Contact Centre which is annexed to the affidavit of the Independent Children’s Lawyer filed this day.  I accept the proposition of the Independent Children’s Lawyer that there are a number of matters raised in the Contact Centre report which are concerning in relation to the mother’s conduct on those occasions, specifically as to her inability seemingly to separate adult issues from the issues impacting upon the children.   There are a number of examples where she has made inappropriate remarks to the children, matters which certainly dictate that for the time being any supervision of her time ought to be by somebody independent of her.  It certainly supports the notion that the mother, on the evidence presently before the Court, is not yet in a position to take unsupervised time with her children.

6. Those examples emerged in a number of respects in the visits which occurred on 22 May 2011, 5 June 2011, 19 June 2011, 3 July 2011, 17 July 2011 and 7 August 2011.  I have articulated to the mother just prior to delivering these more formal reasons those matters identified on those dates as being matters of concern.

7. Other matters which stand in the way of the Court resolving the issues on a final basis are related to criminal proceedings outstanding in relation to both the maternal grandmother and the father.  I am informed that the maternal grandmother has appealed her conviction and that she hopes and expects that her appeal will be dealt with later this month.  The father is equally confident that there will soon be resolution of the criminal proceedings against him.   He advises that his solicitor is in communication with the prosecuting authorities and some negotiated outcome may shortly be possible

8. Whilst it is the Court’s desire to move to the final trial of the proceedings as soon as possible, those matters presently stand in the way of being able to do so.  I therefore decline the mother’s application to spend time with the children other than in a supervised environment and invite the Independent Children’s Lawyer to make enquiries of Contact Centre 1 to see whether some additional visits can be made available to this family.  I will otherwise provide the mother with the opportunity to provide details of additional supervisors of her time.  Those supervisors would need to be people who would enjoy the support of the Court in being able to undertake an independent view of things and protect the children from any inappropriate behaviours by the mother.

9. At this very point in time when I was dictating my reasons the mother has removed herself from the Courtroom.  She left in what could be described as a state of agitation and slammed the door of the Courtroom as she exited.  That provides to the Court a further indication that the mother appears unable to control her emotions at important times.  The concern to the Court in that regard would be largely that she is unable to control her emotions in the presence of the children.

10. The occasions to which I referred in the reports from the Contact Centre are occasions which clearly indicate that the mother is at this time unable to separate her very strong emotions sufficiently to shield the children from being embroiled in those very adult disputes.

11. The maternal grandmother has remained.  I have no notion of how much she is able to exercise any influence over her daughter at all but it would clearly be in her interests and in her daughter’s interests to endeavour to exercise some patience whilst the Court does its best to have regard to all relevant evidence in the proceedings and come to a conclusion which represents the best interests of the children.  I will thus need to adjourn the proceedings whilst that further information and material is obtained and gathered.

12. The mother further alleged that the father had not complied with orders of the Court made on 1 June 2011 that he undergo random drug screening.  The father has this day provided evidence of the request that was made by the Independent Children’s Lawyer that he do undertake such drug screening and he has further provided a copy of a report dated 7 June 2011 which indicated that no drugs were detected.

I certify that the preceding twelve (12) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 5 September 2011.

Associate: 

Date:  9 September 2011