BINDER & MERZA

[2009] FamCA 1063

FAMILY COURT OF AUSTRALIA

BINDER & MERZA	[2009] FamCA 1063
FAMILY LAW – CHILDREN – Parenting orders – With whom a child shall live – With whom a child shall spend time – Where child made disclosures of physical harm by the mother – Where Department of Community Services involved – Mother to have supervised contact only with the child
Family Law Act 1975 (Cth)

APPLICANT: Mr Binder

RESPONDENT: Ms Merza

INDEPENDENT CHILDREN’S LAWYER: Ms Stewart, DA Family Lawyers

FILE NUMBER: BRC 5550 of 2009

DATE DELIVERED: 12 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 12 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Pieterse of Counsel appearing for the Applicant Father

SOLICITOR FOR THE APPLICANT: Simonidis Shoebridge Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Kalle of DK Law appeared for the Respondent Mother

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Stewart of DA Family Lawyers appeared as the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

1. The proceedings be adjourned to the Judicial Duty List at 10.00 am on
   13 January 2010 at the Brisbane Registry of the Family Court.

2. The Mother and Father to attend a psychiatrist nominated by the Independent Children’s Lawyer at such times and places and on such terms as may be arranged by the Independent Children’s Lawyer for the preparation of a psychiatric assessment of each party.

3. The Independent Children’s Lawyer given leave to provide the nominated psychiatrist with any subpoenaed documentation or documentation from the Court file required to assist in the preparation of the psychiatrist assessments of the Mother and Father

4. Pursuant to Section 62G of the Family Law Act 1975 a Family Report is to be prepared by Ms B, Family Consultant, Family Court of Australia.

5. The report writer has leave to read any document produced on subpoena.

6. The parties shall attend and ensure the child, D born … March 2003, attends all necessary appointments for the preparation of the Family Report.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. Order 2 of the Order of this Honourable Court dated 20 July 2009 be varied as follows:

   “The Mother spend time with the child, [D] born […] March 2003, at all such times as may be agreed in writing between the Mother and the Father with the child to be supervised by the paternal grandmother and or [Ms E] or [Mr E].”

IT IS FURTHER ORDERED THAT:

1. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:   BRC 5550 of 2009

MR BINDER

Applicant

And

MS MERZA

Respondent

REASONS FOR JUDGMENT

1. Young D is six years old.  Following the separation of her parents consent orders were entered into in 2005.  Obviously, at that time, she was two years of age.  Those orders provided for the time by the parents to be shared, always a laudable goal.  I am not sure that I entirely agree that it is fair on the child to be moving around between the houses so frequently but that is what the parties agreed to. 

2. The orders were made as consent orders at that time.  That arrangement persisted until relatively recent times, when, because of disclosures made by the child that she was subjected to physical harm in the mother’s household, the father has changed the arrangements.  When he did so, the proceedings were enlivened again and the matter came before me on 20 July.

3. For reasons which have been explained, interim consent orders were made in terms that the child was to live with the father and the mother was to have only supervised time and it was to be supervised either by the paternal grandmother or Ms E or Mr E.  As I understand it, the only additional material since that time consists of certain subpoenaed documents being made available, but also a letter from the Department of Communities of 13 August 2009 and an assessment report of Ms B, who is an experienced family consultant employed with the courts.  She had completed an intake assessment report of 3 August. 

4. The file from the Department of Communities is not presently available, so I have no idea of the nature of the investigation conducted;  how detailed was it?  How experienced was the staff officer who did it, but, from what I could find out, the mother was interviewed by phone and the child was subjected to a 10 minute interview at office premises.  These interviews were done, I believe, two days after Ms B’s assessment on 3 August. 

5. The reports are quite stark in their conflicting information.  The letter from the Department of Communities says, “Look, we have investigated this matter and there is no evidence whatsoever of the child being physically harmed in the mother’s household.”  The far more detailed assessment by Ms B would indicate the child making ongoing complaints.  The methodology used by Ms B is there for all to see.  The format used was that she was going to write a story about her family and that a judge and her parents would read the story and then she asked what she thought should be in the story and the child proceeded to tell.

6. Now, the court is always alert to the possibility that allegations can be made, a child can pick up in any number of ways, overhearing conversations or suggestions being put to a child, but the proposals of the mother on today’s date is to reinstate the orders of 2005 for equal shared care.  I can infer from that that the child has no concerns whatsoever about the safety of the child in the father’s household.  The same cannot be said about the father and he relied on Ms B’s assessment that the child is subjected to corporal punishment/physical punishment in the mother’s household.

7. The evidence of disclosures extends to being corroborated by the father’s partner, Ms W.  She says, on Sunday, 5 July 2009, she was sitting at the dinner table.  The child said to her, “Can I talk to you about my Mum?”  “Yes.”  “When I am naughty, Mummy pushes me under the lounge and she makes me stay there.”  She said, “Why?”  The child said, “It is called discipline.”  She says that she overheard the child talking to her father and saying, “Mummy hits my head on the kitchen bench.” 

8. Now, once these allegations are raised, they are difficult to investigate.  There is the overriding concern, as well, of emotional abuse as to the poor communication between the parties and the hostility evident at changeovers.  At page 3 of the report, the father suggests that the dynamic between the mother and himself changed not long after he announced his engagement to Ms W.  Whether that was a form of trigger, I am unable to say at this point in time, but he was certainly of the view they were not communicating as well as they had in the past. 

9. I note that the child was seeing a counsellor, because of behavioural issues, at Child and Youth Mental Health Services, and that counsellor saw fit to make a referral to the Department of Community Services.  Presumably one can infer that it was done for good reason at that time as a result of certain disclosures being made by the child, whether or emotional abuse or physical abuse, I am unable to say at this point in time.

10. Suffice it to say that until the methodology of the Department of Community Services is explored, until the matter can be further explored, I propose to accede to the position adopted by the independent children’s lawyer, that is, I will leave the orders in place as they are.  I appreciate this is a great burden on the mother.  I draw an analogy with other types of abuse allegations we receive, is that sometimes you can be very cynical about the circumstances in which disclosures are made, but once they are made to people they are out there and they have to be investigated and the court has to approach it from the point of view, “What if they are correct?”  That is what I am doing at this stage.

11. The independent children’s lawyer proposes a psychiatric assessment of parties and also a family report.  I agree with that.  I am normally not given to amending orders on a piecemeal basis, but the orders of 20 July, I will amend in this respect.

12. The mother spend time with the child as may be agreed between the parties, but, failing agreement, I am urging the father to try and be flexible and, if the child’s position can settle down, then for the time to be increased.  Obviously, there will be a degree of anxiety at the change of arrangements, but, at this time, for the reasons given, the mother’s time will continue to be supervised. 

RECORDED:   NOT TRANSCRIBED

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  12 October 2009