Carter and Olson (No. 2)

[2013] FamCA 698

FAMILY COURT OF AUSTRALIA

CARTER & OLSON (NO. 2) [2013] FamCA 698

FAMILY LAW – CHILDREN – interim application to vary orders – undefended – orders varied.

Family Law Act 1975 (Cth)

APPLICANT: Ms Olson

RESPONDENT: Mr Carter

FILE NUMBER: MLC 10939 of 2010

DATE DELIVERED: 29 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 29 August 2013

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

Orders

1. That until further order, paragraph 4 of the orders made on 15 January 2013 is suspended.

2. That until further order, the father spend time with the child J born … July 2004 in each alternate weekend at B Contact Centre at such times as the Centre can provide under their supervision.

3. To give effect to paragraph 2 of these orders, each party forthwith complete all necessary forms to register with the contact centre and fulfil such requirements as they may have for the purposes of carrying out paragraph 2 of these orders.

4. That the father has leave to seek to set aside these orders if by 4.00pm on 13 September 2013 he files an application in a case supported by an affidavit setting out why he did not attend the hearing this day.

5. That the mother provide to the contact centre a copy of these orders and in due course a copy of the reasons given this day.

6. That a copy of these reasons be made available by the court to the family consultant responsible for the family report soon to be undertaken.

7. That pursuant to Section 68L(2) the Family Law Act 1975 the children J and M both born on the … July 2004 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

8. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

9. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

10. That the reasons for judgment this day be transcribed and be made available to the parties.

11. That the mother serve a copy of these orders upon the father by post to his last known address.

12. That the application in a case filed 26 August 2013 is otherwise dismissed.

13. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carter & Olson (No. 2) 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 MELBOURNE

FILE NUMBER: MLC 10939 of 2010

Ms Olson

Applicant

And

Mr Carter

Respondent

REASONS FOR JUDGMENT 

1. This is an application in a case filed by Ms Olson, to whom I shall refer as the mother, seeking to suspend orders made on 15 January 2013.  Those orders were made by consent of both parties and supported by an independent children’s lawyer.  The respondent to the proceedings is Mr Carter, to whom I shall refer as the father. 

2. At shortly after 10 o'clock this morning the father was called and there has been no appearance by or on his behalf.  I have accepted into evidence an affidavit of Ms A, who deposes to the fact that on 26 August 2013, at just after 3 pm, she served the father personally at Suburb D with the application in the case and the affidavit upon which the applicant relies.

3. The affidavit said that Ms A asked the father whether he was Mr Carter and he replied, “Yes”.  There is no appearance nor is there any correspondence that I am aware of with the Court, and the mother has indicated that she has not had any contact with the father since Monday. 

4. I am very conscious of the fact that this is a radical departure from the orders that were made in January 2013, notwithstanding there has been considerable litigation since that time.  I propose to give the father an opportunity to set aside the orders I propose now to make, on the basis that he files an application to do so, but also explaining by affidavit why he has not attended today.

5. The application in the case sought that the order made on 15 January 2013 be suspended, pending the recommendations of the family report.  That family report was ordered by me on 7 August 2013, on the first day hearing, at which time I set the case down for trial in January.  In discussions with the mother, it is clear that that is not really what she intended.  Obviously, if the family report writer delivered a report and I had made an order of that nature, then the 15 January orders would automatically resume.  That was really not what was intended.

6. It is quite clear that the mother is seeking a suspension of the orders until such time as the Court can comprehensively examine the position.  In the meantime, she is proposing that, in relation to one of the children, there be supervised time at a contact centre in Melbourne.  That contact centre has already had considerable involvement with these parties.

7. This case concerns two children, J and M, who are currently nine years of age.  Both have a disability.  That disability significantly affects their capacity to communicate.  Notwithstanding those problems, the mother and the father, along with an Independent Children’s Lawyer, consented on a final basis to orders that both children spend time with their father on a regime that would have ultimately culminated in overnight time.

8. I propose for the purposes of these reasons which, no doubt, the father will read if he is interested, to divide the children into separate categories. 

9. In relation to M, the evidence is much clearer than it is in relation to J.  The evidence is that the first visit after the orders was on 20 January 2013, and the mother had difficulty getting M into the car and when they arrived at the contact centre, where the handover was to take place, he refused to get out.  The evidence shows that he was distressed.  Subsequent evidence, which obviously is not tested but at this stage is unchallenged, indicates that the problems that M was exhibiting were sufficiently severe for the contact centre staff to decide that they did not want to be involved in the changeovers that had been set out in the orders.

10. The contact centre is not a party to the proceedings and therefore not obliged to carry out the orders of the Court.  They do so, pursuant to a contractual arrangement orchestrated by the Australian Government.  If, however, a contact centre took the view that they were going outside of their charter to force a child to go, I am prepared to accept that there was a significant problem with M.  That problem was exacerbated when the father went to the school.  I have been provided with a letter from the principal of M’s primary school dated 1 June 2013.  The facts of what occurred on 15 March at the school do not matter, save to say that the school indicated that they were not happy about what occurred and they had spoken to the father, who was unhappy about the decisions that the principal made.

11. Like the contact centre, the school is not a party to the proceedings and the Court can not direct them what to do.  It is sensible that a court should not interfere with the responsibility of the principal of a primary school, where the principal is in a position of loco parentis not only for that child but all other children. 

12. Thus, in respect of M, it seems that since 15 January, there has been literally no relationship between father and child.  The evidence therefore would indicate that the extant orders are not working and it is not in M’s best interest that they continue, particularly pending the determination by the Court of the substantive applications to whether or not the orders should be changed in a very significant way.

13. I am very conscious in this case that I heard a contravention application recently brought by the father.  I dismissed it on the basis that I was satisfied about the mother’s reasonable excuse. 

14. That then enables me to turn to the child J.  Here, the evidence is a lot harder to discern about what is in J’s best interest.  I say that without any disrespect to the mother, who is not represented by a lawyer, but who would certainly benefit from some very careful considered advice when the trial ultimately starts.

15. Again, it is important to point out that the orders on 15 January 2013 were made by a judge on a final basis on the urging of the parties.  Courts make orders in relation to children on the assumption that they are in their best interests and that the Court does not have to interfere because the parents have worked things out and know best for their children.  That view is reinforced because the parties also consented to an order that they have equal shared parental responsibility for their children.  Equal shared parental responsibility is, as a matter of law, an indication that the parents not only agree they can do the decision-making concerning their children, but are obliged to do so.

16. The evidence in the affidavit that I am reading now indicates that that has never really been something that the mother and the father have been able to do.  One wonders why the order was made in January in the first place. 

17. In respect of J, the contravention application to which I have referred arose out of the fact that after one visit, which has been described as part of a regime that seemed to be working, J arrived home with his penis coloured yellow.  That problem was investigated by not only police and Human Services employees, but also a paediatrician and for whatever reason, including, possibly, the fact that J cannot communicate verbally, no conclusion could be drawn by any expert to indicate that the father was responsible for what occurred.

18. I might mention that in the contravention, the father put to the mother that he believed she would do such a thing to prevent him from having any time with the children.  I indicated at the time that the orders were clearly not working, but not for that reason. 

19. On the basis of that evidence alone, I could not find that there was a change of circumstances.  However, there is some other material that is a serious concern here.  Arising out of the penis-colouring incident, there was considerable communication between the mother and the father which has been generally described in the mother’s affidavit as threatening and abusive.  That email traffic from the father extended to the mother’s sister and the mother has tendered an email received by her sister indicating that the father’s words to her were, quote, “burn, bitch”.

20. All of that led to an Intervention Order being sought by the mother.  On 28 June 2013, a state magistrate was sufficiently satisfied that there was a problem between the mother and father for the State to intervene in their personal lives and a final order was made.  I can take judicial notice of the fact that those sorts of orders are not easily handed out and are usually confined to a period to enable the parties’ relationship to settle down, particularly when they are parents of children.  In this particular case, the order has been made indefinitely.  I conclude from that that a magistrate was sufficiently concerned about the father’s behaviour.

21. To add to the dilemma in this case, it seems that the father has indicated that he has had a medical problem associated with bowel cancer and recently undergone surgery.  The mother’s evidence, as indicated in her affidavit, is that she is unaware of the extent of the illness.  As I pointed out in discussion, someone having surgery for bowel cancer does not eliminate them from doing every day activities and, in particular, caring for children.  The mother’s evidence is that because of her concern about the health issue, it may be that the father does not have the ability to care for J particularly in circumstances where J does not have the verbal skills to communicate with her. 

22. I have some reservations about whether there is any significance in that evidence but it is unchallenged and the father is not here.  What concerns me is the behaviour that gave rise to the intervention order.  It may be that it was a reaction to the mother’s accusation about the penis colouring issue.  But, on any view, that sort of behaviour, if it gave rise to a magistrate making an intervention order, indicates that there is a serious problem with not only communication but also control.  As I indicated at the start of these reasons, I have some concern about why the father is not here today particularly because I am asked to make these orders on vague and unchallenged evidence. 

23. For that reason, I propose to give him the opportunity to have a say if he wishes to do so.  That said, I propose to only make that order because it may be that he considers that there is no reason for him to be here today because the evidence is not strong enough. 

24. In my view, the incident that gave rise to the intervention order justifies the Court having a careful look at the behaviour between the parents.  That gives rise then finally to the question of what sort of time should be spent between J and his father pending the proper determination of the Court’s hearing. 

25. This does not seem to me to be any prejudice to the father because the mother is not seeking to eliminate from the life of J but rather simply to curtail J’s time so that there is no risk.  I am not entirely sure that I understand what the risk for J is but having regard to the fact that there is no response from the father, I am entitled to conclude that the mother has some foundation for her concerns.  She, however, has not indicated a complete exclusion of the father and indicated that she would be happy for the contact centre to take control.  Bearing in mind that this is only for some months, I see no prejudice to J let alone the father. 

26. In the circumstances, bearing in mind the untested evidence here, I propose to suspend the existing orders relating to both J and M until further order.  But I propose to order that the father’s time with J be each alternate weekend at B Contact Centre at such time as the centre can provide and that, to give effect to that order, each party immediately fill in the necessary registration forms and the mother provide a copy of these orders and reasons to enable the contact centre to understand what the dilemma is. 

27. I am sufficiently concerned about this case to make a further order that the Independent Children's Lawyer be appointed and that obviously is a matter for Victoria Legal Aid.  I shall otherwise order that the reasons be transcribed and a copy of the orders I now propose to make be served by post on the father.  The husband can have leave to set aside the orders if, by 4 o'clock on 13 September, he files an application in a case supported by an affidavit setting out why he did not attend the hearing today.  I will otherwise dismiss the application in a case filed 26 August.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 August 2013.

Associate: 

Date:  30 August 2013