Branscombe and Branscombe

[2007] FamCA 613

FAMILY COURT OF AUSTRALIA

BRANSCOMBE & BRANSCOMBE [2007] FamCA 613

FAMILY LAW – CHILDREN - With whom a child spends time - Order for Family Report prior to interim hearing of father's application to spend time with children

APPLICANT: MRS BRANSCOMBE

RESPONDENT: MR BRANSCOMBE

FILE NUMBER: MLF 1351 of 2006

DATE DELIVERED: 14 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 14 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr T.J. Puckey

COUNSEL FOR THE RESPONDENT: Mr Hackett

Orders

1. That the interim issues about the time the husband shall spend with the children shall be adjourned to the Registrar’s Duty List at 9.45am on 30 August 2007 and the Deputy Registrar who conducts the Pre-Trial Conference at 9.30 that morning is requested to fix a trial date if appropriate even though there is an existing Form 2 application.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1351  of 2006

MRS BRANSCOMBE

Applicant

And

MR BRANSCOMBE

Respondent

REASONS FOR JUDGMENT

1. This is about some interim orders for the daughter, who is 11, and the son, who is nearly nine.  For the first four years after their parents’ separation they had no contact with their father.  At this stage I need not traverse the different versions as to why that occurred.  For the last 18 months or so there has been a building‑up of time with him. 

2. The father lives in Queensland.  The children live in Melbourne.  Even with the building‑up of time between them, it has been sporadic and only for very short periods.  Only once has it been in Queensland, and in those circumstances the mother was there and the children spent a very little bit of overnight time with their father. 

3. There have been two reports by Ms D, one dated 27 July 2006, the other 14 March 2007.  That more recent report suggested that the time with the father continue to build up so that it would become half holiday periods. 

4. In terms of the substantive children's issues, the father is seeking half holiday time with the children.  There has been a Trial Notice Listing in relation to that, and there is a Pre‑Trial Conference scheduled for 30 August, with the hope that the hearing date will then be set.  That timetable persuades me that I should in no way pre‑empt the issues that need to be determined at trial, by making a decision about them at this stage.

5. I had jumped in quickly to say that.  My intuitive response was well borne out by my reading of the material.  It suggests to me sufficient complexities about the case and I am not in a position to pre‑empt the ultimate issue.  It has already been agreed that there should be another report prepared, to gauge the effect on the children of what allegedly occurred in February, when the children had their last visit with their father, at a time in fact just after Ms D had seen the family. 

6. It is that as the children were being dropped back home by their father he told them that they would no longer be staying at the private school which they had attended for several years – at his instigation - and for which he had been responsible for paying the fees.  It is alleged that the children were simply told that they would be taken out of that school and that that would be effective from the following day. 

7. Obviously, I haven't heard all the detail in relation to that, but the way it has been put is that the children became extremely distressed.  All that I do know, because no‑one has said anything to the contrary, is that the children were removed from that private school.  So that part of the version given by the wife is certainly supported on the material today.

8. The mother has sought that there be the report as agreed, but by a different report writer, not Ms D, because she has certain criticisms of Ms D.  I am not prepared to accede to her request.  It is in the children's best interests to have the same report writer and Ms D in due course can be cross‑examined about her skill, expertise and the substance of her reports.

9. The issue for me is how to promote the father’s relationship with the children without pre‑empting the decision about it.  The children now have not seen their father for four months.  They saw him only on a couple of brief occasions in February in Melbourne, and otherwise not since November last year.  They have had very little time with him, and arguably, there has been the intervening distress to which I have referred.

10. The father argues that the mother is stopping contact.  The mother argues that the father is insensitive to his lack of consistency with the children and insensitive to the son’s particular anxieties (and Ms D notes the quite profound anxieties on the son’s part - anxieties that go well beyond his relationship with his father and contact to be of a more general nature) and also the impact of the recent decision about their schooling.

11. I have read Ms D's reports as requested.  The children were at the time she last saw them, speaking positively of their relationship with their father and were happy to see him.  They did not suggest that their mother was stopping them from seeing him.  Ms D’s opinion was that they needed a relationship with their father.  She made it clear that the mother, for her part, needed to give the children permission for that, and the father, for his part, needed to be predictable and sensitive to the children's needs. 

12. I cannot get to the bottom of the impact of the recent removal of the children from their private school.  On the mother's account, it sounds brutal, but I have not heard all of the evidence.  If it was as brutal as she says, it certainly could have undermined the fragile relationship with their father and compounded their concerns about what Ms D noted on page 11 of her first report, expressed by the daughter as “disappointment” and concerns about her father’s lack of predictability. 

13. Ms D can now see the parties on 9 August.  The father wants the children to go to Queensland in between.  That cannot possibly be in the children's best interests.  Ms D should see the family, gauge the impact of the recent events on the children, and the parties should return to court, probably on the same day as the Pre‑Trial Conference, so that on that day we can ascertain how long it will be until trial, and what Ms D has said, and make an interim decision at that time if it is appropriate.  I do not propose ordering any time between the father and the children between now and then, because, again, that would pre‑empt what needs to occur in ascertaining just what condition the children are in at the moment. 

14. So the interim issues about the time the husband shall spend with the children shall be adjourned to the Registrar's Duty List at 10 am on 30 August 2007.  The Deputy Registrar who conducts the Pre‑Trial Conference at 9.30 that morning is requested to fix a trial date, if appropriate, even though there is an existing form 2 application. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  14 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BRANSCOMBE & BRANSCOMBE