Burmingham & Cod

[2007] FamCA 225

FAMILY COURT OF AUSTRALIA

BURMINGHAM & COD [2007] FamCA 225

FAMILY LAW - EX TEMPORE REASONS – FAMILY ASSESSMENT REPORT – father convicted of murder and awaiting the outcome of an application for leave to appeal his sentence - whether report writer to include the issue of observed interaction between the father and the child

FAMILY LAW - SUBPOENA – INJUNCTION – order that the parties be restrained from providing a copy of any documents produced to any other person

Family Law Act 1975 (Cth)

APPLICANT: Ms Burmingham

RESPONDENT: Mr Cod

FILE NUMBER: ADF 1331 of 2001

DATE DELIVERED: 23 February 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 23 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs West

SOLICITOR FOR THE APPLICANT: Ian Charman & Associates

COUNSEL FOR THE RESPONDENT: In person

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Burmingham and Cod.

Orders

1. That the oral application of the father seeking an order that there be observed interaction between the father and the child as part of the assessment process be dismissed and removed from the active pending list.

2. That the Family Assessment Report to be prepared pursuant to the order made on 18 January 2007 include in the topics to be addressed by the Family Consultant the issue of whether there should be observed interaction between the father and the child as part of the assessment process.

3. That the parties have liberty to re-list this matter before the Honourable Justice Strickland upon receipt of the Family Assessment Report.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1331 of 2001

Ms Burmingham

Applicant

And

Mr Cod

Respondent

EX TEMPORE REASONS

1. I now have before me the oral application by the father for the Family Consultant, who is to prepare the family report in this case, to observe interaction between himself and his daughter, the subject of these proceedings.  That application is opposed by the mother.

2. This is a difficult matter, where the issue in the case is whether the child spends time with the father or not.  At this stage, obviously, I can make no finding about any disputed fact and there are a number of factual disputes that impact upon this issue, not the least of which is what the child's current views are about the father, bearing in mind the traumatic history of this matter.

3. I am told that the child has moved on and has settled down and is no longer having counselling.  That is a two-edged sword though as the father has rightly pointed out.  It either means that the child should not be exposed to the father at this point because it might impact adversely upon her or, as the father rightly says, it may be time, given that she is stable and settled, to reintroduce her to her father.

4. It seems to me, though, without traversing any more of the issues which have been canvassed by Mrs West and by the father in their submissions, that this is a case where we have to take one step at a time, and it seems to me the first step is to have the child interviewed by the Family Consultant to ascertain the child's views as to spending time with her father and obviously generally how she sees her relationship with her father and, subject to the Family Consultant's expert opinion about that being presented to the court, then consider the next step, which would be whether there should be an observation of interaction or not, depending upon what views the child expresses to the Family Consultant and what recommendation the Family Consultant makes about that.

5. I think that is the safest course to follow.  I do not at this stage necessarily accept that reintroducing the child to the father would be an abuse of the child.  That is what this case is all about.  The mother says that but the father says that is not so.  The difficulty the father has is that he has not seen the child for a number of years now.  He says, and his case will be, that his last memory of the child was that she was comfortable and happy with him and he says, and it may turn out to be correct, that the child is able to be reintroduced to him without any negative impact.  But again the experts have to assess that and provide a report and recommendation to the court, and then I will make a decision about that upon hearing all the evidence that I can at that point.

6. Although it might prolong this case, that is how I propose to proceed, bearing in mind, to repeat, that the issue in the case is whether the child should be reintroduced to the father.  The child is eight years of age and I want to see what comes of the child being interviewed.  I am not suggesting that all that happens is the child is interviewed at this stage.  I am looking at the family report progressing, and the next step would be, as would normally be the case, interviews of the parties and the child by the Family Consultant and then at that point a report, and I will add to my previous order that the Family Consultant is to report on whether there should or should not be observed interaction between the father and the child.

I certify that the preceding
6 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 23^rd day of February 2007.

……………………………………….
Associate