Brock and Brock and Ors

[2017] FamCA 654

FAMILY COURT OF AUSTRALIA

BROCK & BROCK AND ORS [2017] FamCA 654

FAMILY LAW – CHILDREN - INTERIM

APPLICANT: Ms Brock

RESPONDENT: Mr Brock

2^nd RESPONDENT: Ms Aldergate

3^RD RESPONDENT: Mr Aldergate

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 7376 of 2016

DATE DELIVERED: 18 August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 18 August 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Mr Fermanus

SOLICITOR FOR THE RESPONDENT: Commins Hendriks

COUNSEL FOR 2^ND – 3^RD RESPONDENTS: Ms Eldershaw

SOLICITOR FOR 2^ND – 3^RD RESPONDENTS: Cater & Blumer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

PENDING FURTHER ORDER

1. Orders are made in the terms of Exhibit 7 as set out hereunder:

   1.That B born … 2003 live with the 2^nd and 3^rd Respondents.

   2.That C born … 2004 live with the 1^st Respondent.

   3.That C and B shall spend time together:

   (a)During school terms, every alternate weekend from the conclusion of school on Friday (or 3pm if a non school day) until the commencement of school on Monday (or 9am if a non school day) with the first occasion to be the weekend of 8 to 10 September 2017;

   (b)For half of each school holiday period as agreed between the 1^st, 2^nd and 3^rd Respondents but failing agreement, in the first half of the holidays in odd numbered years and the second half of the holidays in even numbered years.

   (c)at such other times as may be agreed between the 1^st Respondent and the 2^nd and 3^rd Respondents in writing.

   4.For the purpose of implementing the preceding order:

   (a)the time B and C spend together shall occur in the care of the 2^nd and 3^rd Respondents.

   (b)except where changeover occurs at school or as agreed between the 1^st Respondent and 2^nd and 3^rd Respondents in writing, changeover shall occur at the front entrance to the IGA supermarket in D Town;

   (c)in order to implement time in the school holidays:

   (i)each holiday period will be taken to commence on the first Saturday after the conclusion of the school term and conclude on the Sunday immediately prior to the start of the next term;

   (ii)the changeover time during each school holiday period shall be 5pm on Saturdays.

   5.That each party is to ensure that the other parties are kept informed as soon as is reasonably practicable of:

   (a)Any serious medical problems or illnesses suffered by B or C, including the details of any hospital or medical centre to which that child has been taken in the case of an emergency;

   (b)Any medication that has been prescribed for B or C that needs to be taken during the time she is in the care of the other parent;

   (c)Any changes to their residential address and other contact details;

   (d)Any other matter relevant to the welfare of B and C.

   6.By this order, each party is permitted to liaise directly with B’s school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about her progress, irrespective of the named carer or contact person on any school enrolment form.

   7.By this order, each party is permitted to liaise directly with C’s school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about his progress, irrespective of the named carer or contact person on any school enrolment form.

   8.By this order, each party is permitted to receive copies of school reports, newsletters, photograph order forms and invitations to attend any activities which parents are invited to attend relating to B and C.

   9.Each party shall be restrained from:

   9.1criticising or denigrating the other parent or member of that party’s household in the presence or hearing of B or C.

   9.2discussing these proceedings with B or C or with any other person while in the presence or hearing of B or C, other than to inform them of the arrangements by which he or she is to live with and spend time with a party.  

   9.3causing or permitting B or C to have any contact whatsoever with the Applicant Mother or Mr E;

   10.The 2^nd and 3^rd Respondents be restrained from facilitating B or C spending time or communicating with Applicant Mother or Mr E, the Court noting that the mother and Mr E presently reside next door to the 2^nd and 3^rd Respondents such that it is impracticable to express this restraint in terms of there being strictly “no contact”.

   11.The 2^nd and 3rd Respondents have leave to issue subpoenas to:

   (a)Queensland Police

   (b)Queensland Ambulance Service

   (c)Queensland Department of Communities, Child Safety and Disability Services

   (d)F Resort

   (e)G Hospital

   (f)Dr H, being B’s treating psychiatrist

   (g)Dr J, being B’s Paediatrician

   (h)K Town Medical Centre

   (i)D Town High School

   (j)L School

   12.The Independent Children’s Lawyer has leave to issue such further subpoenas as he thinks necessary for the orderly conduct of the proceedings. 

   13.By this order, the 1^st Respondent and the Independent Children’s Lawyer may communicate with any health practitioner who treats B for the purpose of obtaining all reasonable information about B.

   14.By this order, the 2^nd and 3^rd Respondents and the Independent Children’s Lawyer may communicate with any health practitioner who treats C for the purpose of obtaining all reasonable information about C.

   15.That the 1^st Respondent have sole parental responsibility for C in relation to all decisions of a major long term nature.

   16.That the 2^nd and 3^rd Respondents have sole parental responsibility for B in relation to all decisions of a major long term  nature.

   17.That the 1^st Respondent shall inform the Applicant, 2^nd and 3^rd Respondents and the Independent Children’s Lawyer in writing of any major long term decision he has made for C and all reasonable particulars as to the same.

   18.That the preceding order shall apply to the 2^nd and 3^rd Respondents mutatis mutandis in relation to B.

   19.That leave be granted to the 2^nd and 3^rd Respondents pursuant to s 121 of the Family Law Act for a copy of the Child Responsive Program Memorandum dated 16 May 2017 to be provided to Dr H, being B’s treating psychiatrist.

2. The mother is restrained from directly or indirectly contacting the children or causing anybody else to contact the children.

3. The Independent Children’s Lawyer is to make arrangement for Dr M to carry out interviews and provide the court with a Chapter 15 expert report.

4. Each party is to pay one third of the costs of the Chapter 15 expert report. In the event that one party does not pay the remaining parties are to pay Dr M so that Dr M is not out of pocket.

5. Dr M is requested to address in her report issues going to the parties and children’s mental health, family violence and drug and alcohol use issues identified in the Child Responsive Program Memorandum dated 16 May 2016 and any other relevant s 60CC(2) and (3) considerations. Dr M is also requested to express an opinion as to whether or not I should consider making a parenting testing order in circumstances where the mother has raised an issue as to whether or not the father is C’s biological father and the father has given evidence about that issue at paragraph [25] and following of his affidavit filed 25 November 2016. I note that none of the three parties nor the Independent Children’s Lawyer are seeking an order for parentage testing at this time and I am approaching the matter on the basis that C’s parentage at this point is unchallenged by the parties and the Independent Children’s Lawyer.

6. The Independent Children’s Lawyer is to provide Dr M with a brief of documents from the file and subpoenaed material which he believes are relevant documents.

7. The Independent Children’s Lawyer has photocopy access to any subpoenaed documents for the purpose of preparing a brief to the Chapter 15 expert.

8. I am advised that Dr M can conduct interviews in mid-December and provide a report nine weeks afterwards.

9. The final hearing is listed from Tuesday 3 April 2018.

10. The matter is listed for a compliance check at 9.30am on 15 March 2018.

11. By 28 February 2018The parties are to file updating affidavits that cover anything not in previous affidavit and file affidavits from any witnesses upon whom they wish to rely.

12. I note that the Independent Children’s Lawyer is going to request the Registrar of this Court to request the Registrar of a Local Court to produce material from the Local Court and he has my authority to make that request to the Registrar of this Registry.

13. I note that the father’s lawyers will attend by telephone on 15 March 2018 and any parties and other lawyers may attend. To participate in this mention by telephone please dial … and at prompt enter password ...

14. Any party and the Independent Children’s Lawyer has liberty to apply on 14 days’ notice to change those orders if circumstances arise that justify a reconsideration of these interim orders before I deal with the matter on a final basis.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brock & Brock has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7376  of 2016

Ms Brock

Applicant

And

Mr Brock

Respondent

And

Ms Aldergate

2^nd Respondent

And

Mr Aldergate

3^rd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The father, maternal grandparents and the Independent Children’s Lawyer seek orders as set out in Exhibit 7.

2. The mother at the commencement of final submissions sought the following orders:

   2.1.The mother have sole parental responsibility for B;

   2.2.The father have sole parental responsibility for C;

   2.3.B live with the mother;

   2.4.C live with the father;

   2.5.The mother and the father talk positively about the other parent to the children and be more proactive in encouraging the other parent to the children;

   2.6.B to spend time with the father over time such time not to commence immediately;

   2.7.C spend time with the mother;

   2.8.The children spend time with the maternal grandparents every fourth weekend.

3. Having read the documents upon which the parties rely, there are very concerning parts of the material, particularly going to the issue of B’s mental status. In June 2016 it is reported B attempted to drown herself. She has self-harmed, cutting herself requiring hospitalisation. She was again hospitalised last weekend when the mother, seemingly on the spur of the moment, flew her to Queensland so she could spend some time one on one with her.

4. There are issues related to family violence particularly in the mother’s household. I don’t know where the truth lies at this point and I won’t be able to make determination about that until I have everything tested at a final hearing. But in the context of an interim hearing I place weight on the reports made by the children to the Family Consultant. B reported that from 2012 until 2015 when she lived with her mother and Mr E, she had witnessed Mr E punch and kick her mother. She also stated that in February 2017 the mother and Mr E physically assaulted her when they pushed her onto the ground and yelled and shouted at her. B described her mental health to the Family Consultant as “shit” and that she had been self-harming and recently had come home and cut her arm and “wanted to die” but since commencing anti-depressant medication about five weeks prior to the interview on 27 April 2017 her mood had improved. Between 2013 and 2014 when he lived with his mother and Mr E, C reported that Mr E abused him multiple times including physical and verbal abuse. He said that on a number of occasions, Mr E hit him with an electrical cord and on one occasion Mr E and the mother had locked him in his bedroom for two days. C believes his mother is using methamphetamine. C expressed concern about B’s mental health and was aware that she had sent nude pictures of herself to other people on her mobile phone and that she was self-harming. There is an issue about whether B has been the victim of a sexual assault.

5. B told the Family Consultant that she would like to remain living with her maternal grandparents and spend no time with either of her parents. She also said that she would like to spend time with C. C spoke positively to the Family Consultant about living with his father and said he would like to spend time in the maternal grandparents care and spend more time with B. However, both B and C expressed concern about the father’s unwillingness to allow C to spend time with the maternal grandparents. The father seems to have altered his position since the release of the family consultant’s memorandum.

6. I do accept the risks in this case are high and when considering what interim orders to make I have to take them into account as my primary concern and consideration. I approach my task conservatively given the clear risks that currently exist particularly for B.

7. I also take into account what both children are saying they want and give some weight to their views. The weight I give to expressions by B at the moment has to be moderated by what I know about her current mental status. The children’s views are consistent with those sought by the father, maternal grandparents and the Independent Children’s Lawyer

8. I am of the view on interim basis I have to make orders as sought by the father, maternal grandparents and the Independent Children’s Lawyer. I am mindful that means the mother won’t be able to have any communication with children until I get to this case next year. I know that will be very hard for the mother but I have to have children’s best interests in my sights. I have to create certainty for them particularly in circumstances where B, who is already in therapy with Ms N, is about to see a psychiatrist. The mother herself has identified to me how difficult and deep seated B’s problems are. She needs treatment in an environment where the conflict that palpably exists between certain adults in this courtroom aren’t part of what she has to deal with on a day to day basis. She has to be given some space for therapy and treatment. The interim orders I make are not the end of the matter.

9. The orders I will make on an interim basis will be in terms of Exhibit 7.

10. I shall make an additional order that mother be restrained from directly or indirectly contacting children or causing anybody else to contact the children.

11. I will make other orders for all parties to see Dr M, a highly qualified psychologist to do full family report to look at all material produced under subpoena, interviewing everybody including the mother and Mr E and seeing the children with the adults and giving me a full comprehensive report which discusses issues of mental status, family violence, possible drug and alcohol use and dealing comprehensively with the issues and concerns highlighted by Mr O in the Child Responsive Program Memorandum.

12. Any party and Independent Children's Lawyer have liberty to apply on 14 days’ notice to change those orders if circumstance arises that justifies a reconsideration of these interim orders before I deal with matter on a final basis.

I certify that the preceding twelve (12) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 18 August 2017.

Associate: 

Date:  23.8.2017