Chranley and Smart (No 7)

[2010] FamCA 716

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 7) [2010] FamCA 716

FAMILY LAW – CHILDREN – where the father seeks that contravention proceedings be adjourned to allow for a Family Consultant to provide an assessment of any likely benefit of the parties to undertake family counselling – where the proceedings have a long and difficult history – best interests – orders that the proceedings be adjourned and assessment be undertaken

Family Law Act 1975 (Cth) ss 10D & 60CC

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

FILE NUMBER: ADC 207 of 2008

DATE DELIVERED: 11 August 2010

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

JUDGMENT OF: DAWE J

HEARING DATE: 11 AUGUST 2010

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: n/a

THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: n/a

Orders

1. The outstanding Contravention Applications filed by the father are adjourned to 29 September 2010 at 9.15 am before the Honourable Justice Dawe for mention.

2. The Senior Family Consultant is to liaise with Dr A to arrange an appointment for the father to be interviewed by Dr A as soon as is reasonably practical and that the information about the appointment be sent to the father at his address for service.

3. The mother be notified when the appointment is to take place but it is not proposed that the mother attend the appointment or any other family member attend the interview.

4. IT IS DIRECTED that Dr A prepare a report directed to the assessment of the benefit to the child A born … March 1997, if any, for the Court to make an order for confidential Family Counselling to take place between the mother, father, S and the adult daughter J, if J agrees to participate.

IT IS NOTED that publication of this judgment under the pseudonym Chranley & Smart is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 207 of 2008

MR CHRANLEY

Applicant

And

MS SMART

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have had put to me the submissions of both the father and the mother in relation to a suggestion by the father that the parties attend Family Counselling, and the contravention proceedings be adjourned awaiting that Family Counselling. 

2. The mother, for reasons she has given, has rejected the offer of Family Counselling.  She has submitted that she did not see any benefit to the parties, or the Court, for counselling to take place. 

3. The father now submits that he would like a further appointment with the Family Consultant, Dr A, who prepared the report of 16 December 2009, which was only read by the father yesterday.  I put on notice the fact that it appears that the father’s attitude, and behaviour, this morning is a stark improvement to his previous behaviour in this Court. 

4. To that extent, it suggests that there may well be a possibility of reconsidering matters in relation to the question of whether the contravention proceedings can be dismissed, and both parties given the benefit of proceeding with their life without the ongoing litigation in this Court. 

5. I must make it clear that at the current time there are no extant proceedings in relation to parenting orders for the child, S.  The only matters still before the Court, at first instance, are the numerous contraventions.  There is, of course, a matter pending before the Full Court in relation to final orders which were made on 28 May 2010. 

6. What needs to be considered in this matter, is the best interests of the child, S.  The mother has spoken firmly of her strong belief that she wishes the contravention proceedings to be heard and not further delayed.  There is certain weight to be given to that view, however, there is also certain weight to be given to the view that it may be in the best interests of S, for not only the litigation to cease, but also for the ongoing conflict and antagonism between her parents to be significantly reduced. 

7. I have previously made comment that these proceedings had been going for nearly all of the child’s life.  The report from Dr A dated December 2009, which is before the Court, clearly suggests that S has been significantly affected by these ongoing proceedings.

8. S was born in March 1997, and is therefore thirteen and a half.  Her views are significant factors to be taken into account.  However, when dealing with what is in the best interests of the children in Family Court proceedings, one of the primary considerations, set out in section 60CC, is the benefit to the child of having a meaningful relationship with both of her parents.  That is a primary consideration together, of course, with the other primary consideration which requires that the child be protected from psychological harm.  These have been significant matters which I have considered, in particular in relation to S in earlier proceedings.

9. However, the current application before the Court is for the father to have an opportunity to be interviewed again by Dr A, with a view to Dr A reporting to the Court what benefit she sees to S of a possible order from the Court that the parties and S (and if the older sister, J, who is an adult, agrees) J attend Family Counselling. I have indicated that that would be Family Counselling as defined in section 10D, which would be privileged counselling.

10. I am being asked to consider adjourning the contravention applications to enable an appointment to be made with Dr A for her to interview the father and report to the Court as to her assessment of the benefit to S and the parents, S, and, if possible, her sister, J, attending confidential Family Counselling.

11. I have carefully weighed up the benefits to S of the possibility of a restoration of a more civil relationship between her parents and the benefit to S of having a meaningful, appropriate relationship with both of her parents; and the disadvantages to the mother of an adjournment of this trial, that disadvantage to the mother being a disadvantage which may well impact upon her to the extent that it would flow on to S. 

12. Having carefully considered all of the matters the possibility of counselling could perhaps be described as one last chance.  It would be appropriate to allow Dr A to interview the father and to hear his submissions in relation to how he would propose to restore his relationship with S, and to report to the Court in relation to the benefit of the Court directing confidential Family Counselling.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  16 August 2010