BRAMFORD & AINSLEE

[2014] FamCA 793

FAMILY COURT OF AUSTRALIA

BRAMFORD & AINSLEE [2014] FamCA 793

FAMILY LAW – CHILDREN – Whether the child is at a risk of harm – Where the ICL has made attempts to locate the independent child psychologist – Where the whereabouts of the child psychologist have not been identified – Where the child psychologist is a critical witness in this case – Matter adjourned

Family Law Act 1975 (Cth)

APPLICANT: Ms Bramford

RESPONDENT:	Mr Ainslee
INDEPENDENT CHILDREN’S LAWYER:	Doris Chan

FILE NUMBER: BRC 9332 of 2011

DATE DELIVERED: 17 September 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 17 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Ms McClelland, Raniga Lawyers
SOLICITOR FOR THE RESPONDENT:	Mr Saunders, Saunders & Co Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rayment, Legal Aid Queensland

Orders

It is ordered that:

1. The trial of these proceedings listed for four (4) days commencing at 10.00 am on 13 October 2014 be vacated.

1. The trial of these proceedings be re-listed for four days commencing at 10.00 am on 16 February 2015 at the Family Court, Brisbane Registry.

1. The proceedings be listed for a compliance hearing before the Registrar at 12.45 pm on 17 December 2014 at the Family Court, Brisbane Registry.

1. Leave is granted to the parties to re-list the matter on the giving of forty-eight (48) hours notice in writing to each party.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bramford & Ainslee 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 BRISBANE

FILE NUMBER: BRC 9332 of 2011

Ms Bramford

Applicant

And

Mr Ainslee

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These parenting proceedings concern the child H born in 2007, who is now six years of age. The parties to the proceedings are her mother, Ms Bramford (‘the mother”), and her father, Mr Ainslee (“the father”); and an Independent Children’s Lawyer (“the ICL”) has been appointed to independently represent the child’s interests in the proceedings, pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”). 

2. Briefly stated, the child was living in a week about arrangement until about September 2012, when allegations of risk concerning the father were made.  It would seem that since then the child has lived with her mother and has had no time with her father.  The mother’s case is that the child commenced displaying sexualised behaviour at child care and arising out of that, adverse allegations were made against the father. 

3. A psychologist of the child asserted that she had made serious disclosures of inappropriate conduct by the father.  There are also issues of domestic violence towards the mother and her other child. 

4. For his part, the father asserts serious neglect on the part of the mother in terms of failing to treat medical conditions and he makes allegations of concern, concerning the mother’s older son. 

5. The father seeks orders for equal shared parental responsibility and for the child to live with him and with the mother every second weekend and for half of the school holiday periods. The mother seeks orders for sole parental responsibility; that the child live with her; and that any time with the father be supervised. 

6. There has been a relevantly recent family report of Ms B filed on the 23 July 2014.  It contains recommendations for orders that there be sole parental responsibility to the mother; that the child live with the mother and spend no time with the father; and that the child continue to attend counselling as well as the mother attending counselling.  At this point, the ICL’s position is not able to be finalised until all relevant reports, including those from counsellors, are filed.

7. Plainly enough, there are significant issues in this case in circumstances where the dispute is as to parental responsibility, with whom the child should live; what, if any, time the child should spend with the father and whether there be supervision of time and; fundamentally, whether the child is at an unacceptable risk in the unsupervised care of the father. 

8. The expert evidence compiled to date includes that of Mr C; Dr D, a psychiatrist; Dr E, a psychiatrist; Ms B, to whom I have referred; and one Ms F, the child’s psychologist. 

9. Unfortunately, Ms F, the child psychologist, has been on long term sick leave and the most recent advice available to the Court and to the parties was that she would not be available until the end of January 2015 to give evidence.  Ms F is a critical witness, as identified by all parties as being critical on the basis that she is the person to whom the child purportedly made disclosures.  In January of this year, Justice Bell, before whom the trial was then listed, adjourned the trial for the very reason that Ms F was not available. 

10. I am informed this morning that Ms F’s whereabouts have still not been identified, despite the efforts of the ICL to locate her and obtain an update of her status.  It is indicated by the ICL that it may well be necessary to engage the services of a private investigator to locate Ms F or, indeed, to serve her with a subpoena for the purpose of her attendance at the trial.

11. I am well satisfied that Ms F is a critical witness in this case and I encourage the ICL in her attempts to obtain aid for the purpose of locating and serving Ms F and the Court highlights to the Legal Aid Commission the importance to this case and this particular child, that Ms F be available to give evidence at the trial. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 17 September 2014.

Associate: 

Date:  17 September 2014