Bilney and Brisco & Anor

[2012] FamCA 593

FAMILY COURT OF AUSTRALIA

BILNEY & BRISCO AND ANOR [2012] FamCA 593

FAMILY LAW – CHILDREN – interim orders – with whom a child lives– application by the mother seeking orders that the children live with her – where the mother alleges that the children have been subject to inappropriate behaviour in the father’s care – where there are current orders for the children to live with the father –where the matter has a long and complex history – best interests – where the Court was not satisfied that it was appropriate to vary existing orders – application dismissed.

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – application by the mother seeking orders for her time with the children be unsupervised and that they commence spending time with the maternal grandmother – where there are orders in place for the children to spend supervised time with the mother – best interests – where the Court was not satisfied that it would be appropriate to vary existing orders – continuation of the current orders for the children to spend supervised time with the mother.

Family Law Act 1975 (Cth) s 60CC

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Bilney

RESPONDENT: Mr Brisco

OTHER PARTY MATERNAL GRANDMOTHER: Ms Y Bilney

INDEPENDENT CHILDREN’S LAWYER: Adey Lawyers

FILE NUMBER: ADC 6474 of 2007

DATE DELIVERED: 19 July 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 19 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: IN PERSON

COUNSEL FOR THE OTHER PARTY N/A

SOLICITOR FOR THE OTHER PARTY IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Adey

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER ADEY LAWYERS

Orders

1. The Applications in a Case filed by the mother on 30 May 2012 and 12 June 2012 are dismissed.

2. Further consideration of variation of the supervision of the mother’s time spent with the children of the interim orders is adjourned to 7 September 2012 at 9.15 am before the Honourable Justice Dawe.

3. The parties to file information concerning their proposed alternative supervisor by 4.00 pm on 20 August 2012 and in the event that the mother or father wish to propose an alternative supervisor of the mother’s time to be spent with the children then on or before 4.00 pm on 20 August 2012 the parties arrange for their 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.

4. It is directed that the father and mother take all steps as necessary to register with the  Contact Centre S (“CCS”) and be available to provide to the Court on the next occasion the waiting list information supplied to them by the CCS.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bilney & Brisco and Anor has been approved by the Chief Justice 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 Bilney

Applicant

And

Mr Brisco

Respondent

And

Ms Y Bilney
Other Party Maternal Grandmother

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the hearing of matters brought by the mother by way of Application in a Case.  The first Application in a Case was lodged on 30 May 2012 by the mother, seeking orders that the children, C, who was born in April 2005, (therefore aged seven) and J, who was born in March 2006, (therefore aged six) live with the mother; that the grandmother, Ms Y Bilney:

   “has the right to see the children, [C] and [J]”;

   that the children do not attend School R; that the father undergo psychiatric help and the matter be heard urgently. 

2. The mother filed an affidavit in support of that application.  Thereafter, there was the Application in a Case filed on 12 June 2012, in which, again, the mother sought the matter be dealt with urgently;  again sought orders that the children live with her until further order;  again sought an order that the father undergo psychiatric assessment:

   So, information is available to the Court and other parties in this matter of his mental health as the children, [C] and [J], are in his care, and the children are exposed to his actions and behaviour every day.

3. She also sought orders that the paternal grandmother, Mrs H, undergo psychiatric assessment.  There were other orders sought.

4. Other orders sought are that the father undergo anger management, as requested in the Family Report of Dr B (sic) in 2010;  the father to have supervised access to the children, C and J, depending upon the outcome of the psychiatric assessment;  and the children, C and J, continue to see a CAMHS worker to deal with the stress and conflict they have suffered because of this Court matter.

5. The final application is that the mother be able to attend the sessions of the children, C and J, at the CAMHS.  The mother filed an affidavit in support.  The Court has also received an affidavit to which is annexed the written notes of the supervisor. 

6. The applications need to be seen in the context of the long history of this matter.  The proceedings have been underway in this Court and the Federal Magistrates Court for years.  There are now over 250 documents on the Court file.  The matter has been designated Magellan.  Previously, orders have been made on numerous occasions, mostly by Justice Burr (as he then was).

7. The final orders application has been referred to listings directions for final hearing to Registrar Paxton.  The directions to prepare the matter for final hearing is listed before Registrar Paxton on 31 July 2012. 

8. The mother has appeared unrepresented today, as does the maternal grandmother and the father.  The Independent Children’s Lawyer, Mr Adey, has also appeared before me.  It appears there is some doubt as to the timing of the service of the application and the supporting affidavit material, although it appears that the father has been served, but has not filed any answering documents.

9. The father put submissions to the bar table this morning that that is due to him being sick and having other duties to attend.  He also asserted that he thought that he would be responding to this matter on 31 July, which seems inconsistent with the Applications in a Case which refer to the hearing day as this morning at 9.15 am. 

10. The Independent Children’s Lawyer was apparently only served with both applications and supporting material on 27 June.  The mother presses the applications today.  She is supported by the maternal grandmother.  The father opposes the orders, as does the Independent Children’s Lawyer, who seeks that both applications be dismissed.

11. The background to the matter is set out in the reasonable summary in the Family Consultant’s report to which Mr Adey, the Independent Children’s Lawyer, has drawn attention.  That Family Report is dated 30 April 2012, and deals with interviews conducted mostly in March 2012, including observations of the children and the parties, and detailed evaluations of the parties’ attitudes and orders sought.  The evaluation of the Family Consultant commences on page 17.  Paragraph 61 is of significance in relation to this matter, referring, as it does, to the mother’s forthright continuing denigration of the father being likely to thwart or sabotage any endeavour on her part to become contrite in relation to her past behaviour.

12. There are references in the remaining paragraphs to the ongoing difficulties for the children, the problems for the children of the ongoing litigation, the difficulties being experienced in relation to the stress of the children and the stress being imposed upon both parties and the maternal grandmother, presumably, of the ongoing litigation. 

13. The report refers to the cautious approach in relation to any change in any existing parenting arrangements, and the need for further psychiatric assessment to be conducted in relation to the mother.  The Independent Children’s Lawyer says that such further assessment is underway, and is likely to be available towards the end of August 2012.

14. The allegations that the mother refers to in the affidavit material filed in support of her new Applications in a Case are that, on one occasion, during a period of time spent with her, the child, C, (who is now aged seven) made a reference to “tea-bagging” his sister, J, and then, during a conversation with the mother, referred to what he understood “tea-bagging” to be.  This is attributed by the mother to be a serious concern of the father’s care of the children, and particularly concerning to her that a boy of that age should know of such an expression and what it meant.

15. The Court joins with the concern that a child of C’s age should know of such a phrase, however, in the context of these ongoing proceedings, and the difficulties which have been referred to in the ongoing relationships between the parties, it is not sufficient, even if all of the evidence were to be accepted as set out by the mother, to require a change of the living arrangements for the children.

16. Similarly, the reference in the further affidavit to the difficulties which J referred to, (if accepted as being the statements that J made in relation to difficulties about bathing, being frightened that she would be punished by her father if she were bathed at the mother’s home, and difficulties in relation to exchange of clothes) are of concern as to the welfare of the child, but whether that concern can be solely attributed to the father is difficult to assess in these circumstances, as it would appear that both children have been subjected to serious behaviour particularly in relation to the ongoing dispute between the parents, and involving the grandmothers, for a number of years.

17. The factors which have to be taken into account by the Court in relation to determining what is in the best interests of the children apply to interim determinations, even though the Court is not able to assess at this interim stage the full extent of the evidence.  The authority of Goode and Goode (2006) FLC 93-286 requires the Court to consider those matters set out in section 60CC. The primary considerations in section 60CC are the need to protect the children from any risk of abuse, whether that is physical, mental, or psychological and benefit to the child of having a meaningful relationship with each of the child’s parents.

18. Taking into account the recent report of the Family Consultant which is filed in the Court and dated April 2012, I am satisfied that, in order to protect the children and ensure that the best interests of the children are the paramount consideration, it is not appropriate to vary the order providing with whom the children live, nor is it appropriate to vary the existing orders in relation to the maternal grandmother or the mother spending time with the children, other than in accordance with the orders that the mother spend time with the children, supervised by Ms G.

19. I am told from the bar table this morning that Ms G has indicated to the Independent Children’s Lawyer that she is unable to continue supervising, and that therefore steps need to be taken to find whether there is another suitable supervisor, or whether the time that the children spend with the mother should now take place at Contact Centre 1. 

20. The evidence before the Court at this stage did not provide any basis for the other orders that the mother was seeking in relation to the psychiatric assessment of the father and paternal grandmother, other than the children are living with those people, and that the mother has a strong view in relation to the father and his family as set out in the Family Consultant’s report.

21. I propose, therefore, to dismiss the Applications in a Case of the mother, which would leave the orders of Justice Burr (as he then was) in place.

22. If, however, Mrs G is not available, then it would seem appropriate for the arrangements proposed by the Independent Children’s Lawyer to be put in place, which would bring about a situation where the parties negotiate, and, if possible, agree upon a further supervisor.  If that is not possible the appropriate information should be put before this Court.

23. The orders therefore are that the mother’s Applications in a Case for interim orders are dismissed. 

24. The Independent Children’s Lawyer was considering a date in mid to late August.  I would be concerned, however, that Dr E’s report might not be available by mid-August.  I would therefore be looking for a date in early September, if one is available.

25. This matter is therefore adjourned to 7 September at 9.15 before me for further consideration of any variation of the orders that the mother spend time with the children on the basis that all parties shall file the information concerning their proposed alternative supervisors by 20 August 2012.

26. I read, therefore, for the purposes of the litigants, the paragraph 6 of the order of Burr J (as he then was) on 17 October 2011.

27. I will direct that the parties (the father and the mother) take all steps as necessary to register with Contact Centre S and be available to provide to the Court on the next occasion the waiting list requirements and the information supplied to them by the Contact Centre.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 19 July 2012.

Associate: 

Date:  27 July 2012