Brown and Turner

[2016] FamCA 635

FAMILY COURT OF AUSTRALIA

BROWN & TURNER [2016] FamCA 635

FAMILY LAW – Procedural — parenting — proceedings expedited

APPLICANT: Ms Brown

RESPONDENT: Mr Turner

INDEPENDENT CHILDREN’S LAWYER: McKean Park

FILE NUMBER: MLC 4102 of 2009

DATE DELIVERED: 8 July 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 8 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mellas

SOLICITOR FOR THE APPLICANT: Elberg Lawyers

COUNSEL FOR THE RESPONDENT: Mr Mik

SOLICITOR FOR THE RESPONDENT: Aitken Partners Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M Kourtis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park

Orders

IT IS ORDERED THAT

1.This matter be listed for mention in Court before me to immediately follow upon the conclusion of the Round Table Dispute Mediation through Victoria Legal aid provided for in paragraph 5 of this Order.

2.Pursuant to section 62G(2) of the Family Law Act 1975 a full family report be prepared.  For that purpose the parties and children B born … 2004, J born … 2008 and T born … 2010 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant.  Such report to be released by not later than 26 October 2016 AND IT IS NOTED THAT earlier reports have been prepared as follows:-

a.      Family Report of Ms G, Family Consultant, filed on 7 April 2011;

b.      Updated Family Report of Ms G, Family Consultant, dated 21 November 2011;

c.      Family Report of Ms I, Family Consultant, dated 29 April 2013; and

d.      Family Report of Ms S, Family Consultant dated 4 September 2013.

3.      The family report deal with the following matters:-

a)      any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that may affect the weight that the court should place on those views;

b) the matters set out in s60CC of the Family Law Act;

c)      an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;

d)      an observation of each of the parties with the children (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the children);

e)      recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the children’s best interest to the greatest extent possible and for minimisation of the potential for further proceedings.

4.For the avoidance of doubt the family consultant be and is hereby authorised to have reference to:-

a)      all documents filed in these proceedings;

b)      any documents produced on subpoenae and released for inspection by all parties;

c)      any documents provided to him by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided;

d)      any documents or things referred to in this Order.

5.That the mother and the father participate, by themselves and their legal advisers, in any round table conference which the independent children’s lawyer appoints, through Victoria Legal Aid, in the week commencing 7 November 2016 and the independent children’s lawyer notify my Associate as soon as possible of the date and time of the conference, once appointed.

6.IT IS REQUESTED that the family consultant be available to discuss the matter by telephone with the independent children’s lawyer on the day of any round table conference appointed pursuant to paragraph 5 of this Order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brown & Turner 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 MELBOURNE

FILE NUMBER: MLC 4102 of 2009

Ms Brown

Applicant

And

Mr Turner

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me with an application for priority made by the independent children’s lawyer Ms Kourtis. She has, with admirable care and organisation, presented the case by way of written submission, which details the fact that the children who are now aged 11, 7 and 5 years old, have been the subject of five sets of proceedings since 2009. They have seen family consultants and been interviewed by law enforcement agencies on numerous times.

2. There are family reports by Ms G, Family Consultant, dated 7 April 2011 and 2 November 2011, a report by Ms I dated 29 April 2013, a report by Mr S, Court Family Consultant, dated 3 April 2014. There is a psychiatric assessment of the parties by Dr H from 2013. The five sets of proceedings have on each occasion been resolved consensually, which means that there has been an absence of findings of fact by this Court. It also means that there has been a lack of judicial scrutiny of the parties’ conduct and capabilities.

3. The resolution of the fourth set of proceedings in March 2014 followed six days of hearing before Thornton J and the result was to change the residence of the children from the mother to the father. The mother now has supervised time with the children and is responsible for payment of a private supervising office.

4. There have been a series of allegations of inappropriate sexual conduct made by each parent against the other or, more particularly, persons in the other parent’s family.

5. Outstanding at the moment is a section 69ZW request to the Department of Health and Human Services (“DHHS”) by order made on 1 December 2015 that has not been responded to. It has not been actioned today. Ms K, DHHS Family Law Liaison Officer, has taken a copy of the order. I anticipate that a response would be forthcoming within approximately one month.

6. I am prepared to grant the matter some priority, although not absolute priority. I will order that there be a family report prepared to be released in October 2016.

7. Obviously, with the case as outlined to me, I am concerned about what the Court can do in such a high conflict case, but the emphasis in the report should be to make this a final resolution and not just the fifth resolution in a greater collection of litigation.

8. I have spoken to the parties and their practitioners about a psychiatric assessment. Such an assessment would expand the breadth of knowledge and understanding of the parents’ individual characteristics. Even if neither fell within the clinically relevant range, it would give the court a window into their unique views and serve to illuminate the process and extent to which each contributes to, or are reacting to, the problems which he/she perceives in the other.

9. I note at the moment there is no application for either party to be further psychiatrically assessed. Neither parent is seeing a psychiatrist. Neither parent is seeing a psychologist. What flows from that is that this matter will be determined on the basis of the parties’ behaviour without there being any evidence of the fact that such behaviour might be attributable to an underlying illness or psychological condition which could or should be treated.

10. I make the orders set out at the commencement of these reasons.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennet delivered on 8 July 2016.

Legal Associate:

Date:  8 August 2016