Chamber and Rebuli (No 3)

[2012] FamCA 624

FAMILY COURT OF AUSTRALIA

CHAMBER & REBULI (NO 3) [2012] FamCA 624

FAMILY LAW - CHILDREN – interim orders – application by the Independent Children’s Lawyer seeking that orders for the father to spend supervised time with the child be suspended – best interests – where the Court was not satisfied that the circumstances justified the making of such an order – application dismissed.

FAMILY LAW - PRACTICE AND PROCEDURE – consideration of whether the Family Consultant should continue to prepare the Family Report in the matter – where the mother alleges that the Family Consultant has been biased – where the Family Consultant is preparing a Report involving the mother and another child in other proceedings – where the Court was not satisfied that the Family Consultant would proceed on an unfair basis – no orders made restricting the Family Consultant’s involvement in this matter.

Family Law Act 1975 (Cth)

APPLICANT: Mr Chamber

RESPONDENT: Ms Rebuli

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr Adey

FILE NUMBER: ADC 5081 of 2008

DATE DELIVERED: 25 July 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 25 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pyke, QC

SOLICITOR FOR THE APPLICANT: S J McKinnon and Associates

COUNSEL FOR THE RESPONDENT: Mr Eid

SOLICITOR FOR THE RESPONDENT: Mellor Olsson

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mrs Lindsay

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Adey Lawyers

Orders

1. The Application in a Case filed by the Independent Children’s Lawyer on 20 July 2012 is dismissed.

1. The Court does not make any order restricting the Family Consultant Ms K’s involvement in the preparation of this report.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chamber & Rebuli (No 3) 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 ADELAIDE

FILE NUMBER: ADC 5081 of 2008

Mr Chamber

Applicant

And

Ms Rebuli

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have before me today two applications in relation to this matter which concerns the welfare of the child of the parties, J (“the child”).  The child is now 10.  These proceedings have been ongoing for a considerable portion of the child’s life. 

2. The Response to the Application in a Case that is before me relates to an application by the Independent Children's Lawyer to suspend the supervised time the father spends with the child pursuant to the Orders which were made on 15 June.  Those orders of 15 June provide for the child to spend time with the father under the strict supervision of the paternal grandmother, and on condition that there be no contact with the child B. 

3. Those Orders of 15 June 2012 took into account various matters which were put to me on that occasion, and particularly the history of the allegations and matters concerning the risk to the children and to the child, J, and particularly the risk in the father’s household as it previously was when he was residing with his former partner. 

4. Taking into account the affidavit material filed on behalf of the Independent Children's Lawyer, I am able to accept the background to that Application, and the concern expressed for the unknown factors in relation to the suitability of the father as someone who should spend time with the child, bearing in mind the serious allegations which were then outstanding and the material annexed to the Affidavit of the Independent Children's Lawyer, which forms the basis of the allegations made to the police by the father’s former partner.  Now that the father is apparently no longer the subject of those proceedings, the information available will necessarily be obtained from the subpoenaed documents in due course. 

5. I accept, therefore, that there was a basis upon which the Application should be brought.  In view of the information provided to the Court now by an Affidavit of the father, (which has yet to reach the court file) the father has provided his version of the events between himself and Ms D.  The Court still does not have the current sworn version of Ms D.  No doubt that will be a matter to be taken into account in ascertaining the facts upon which the Court will find, in due course, what is in the bests interests of the child. 

6. In relation to the interim orders, however, I am not satisfied that there has been a significant alteration in the material, or the matters which affect the best interests of the child, to require me to suspend the Orders which were made for the father to have supervised time each Sunday, provided such time is supervised strictly by the grandmother, and that there is no contact with the child B.  I therefore dismiss the Independent Children's Lawyer’s Application to suspend the father’s supervised time. 

7. In relation to the question of the person who should conduct the Family Consultant’s Report, all parties were aware that there were other proceedings in the Federal Magistrates Court involving the mother and another child, and that those proceedings have been given all the information in relation to this matter in order to enable both Courts to be able to proceed with all appropriate information.  The issue now arises as to whether, on the Affidavit of the mother, Ms K should continue to be the Family Consultant who prepares the report in this matter.  For that purpose, I will refer to the Affidavit of the mother which was filed on 23 July 2012, which sets out statements made by Ms K in the commencement of the interviews with the mother for the preparation of a report in the Federal Magistrates Court matter. 

8. Whilst the remarks indicate that Ms K was aware that the mother was involved in two sets of proceedings, and that there had been allegations in these proceedings concerning the mother’s behaviour concerning the child, I do not consider that the remarks as set out in the Affidavit of the mother are such as to establish that the Family Consultant will proceed on an unfair basis or that the remarks are indicative of bias against the mother by Ms K.  I am certainly not satisfied that those remarks make it necessary to require another Family Consultant to prepare the report.  In my view, I am content with the arrangements made that Ms K be the Family Consultant to prepare the report in this matter, even on the basis that Ms K is also preparing a report involving the mother and another child in the other proceedings. 

9. As I have said in discussions with Counsel, no doubt those matters which relate to the mother’s capacity to care for another child and her suitability to provide appropriate care for another child will be factors which may well be considered in the Family Court proceedings in this Court.  I therefore do not make any order restricting Ms K’s involvement in the preparation of this report. 

10. The matter remains listed on 10 September for further directions to enable the matter to be listed for trial.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 25 July 2012.

Associate: 

Date:  3 August 2012