Clarence and Kitchner

[2007] FamCA 1539

FAMILY COURT OF AUSTRALIA

CLARENCE & KITCHNER [2007] FamCA 1539

FAMILY LAW – CHILDREN – Proceeding pursuant to Div 12A Part VII of the Family Law Act 1975 (as amended) and in Phase 2 – Mother sought to withdraw from the proceedings and no longer to participate in supervised contact arrangements with her three children – Orders made following submissions of all parties

Family Law Act 1975 (Cth)

APPLICANT: Ms Clarence

RESPONDENT: Mr Kitchner

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 767 of 2005

DATE DELIVERED: 18 October 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 18 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McNaught

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Buchecker

SOLICITOR FOR THE RESPONDENT: Aloe & Co. Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Forte Family Lawyers

Orders

1. That all Orders for the mother to spend time with the children D, born … March 1994; L, born … February 1996, and S born on … February 1998 be discharged.

2. That the said children live with the father who shall have sole parental responsibility for them.

3. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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.

4. That all extant applications be otherwise dismissed AND THAT the proceedings be removed from the Active Pending Cases List.

5. That the ex tempore judgment delivered this day be transcribed, placed on the Court file and made available to the parties.

6. That pursuant to rule 19.51 of the Family Law Rules 2004 this matter reasonably required the attendance of a solicitor acting as Counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 767  of 2005

MS CLARENCE  

Applicant

And

MR KITCHNER  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me as part of the procedures pursuant to Division 12A, Part VII of the Family Law Act 1975.  Mr Buchecker continues to appear for the respondent father.  Ms McNaught appears as amicus curiae for the applicant mother and Mr Eidelson continues to appear for the Independent Children's Lawyer.  I do not need to set out in the narrative of this judgment the background which has been adequately recited in my extempore judgment delivered 17 October 2006.

2. On that day, Minute of Consent orders were entered into that the three children, D born in March 1994, L born in February 1996 and S born in February 1998 live with the father.  It was further ordered by consent that the mother spend time with and communicate with the said children in the terms set out in paragraph 3 and that she undertake therapy with a mental health therapist nominated by Dr E.

3. There were otherwise a series of further orders made pursuant to the LAT procedure, and the further hearing was adjourned to a date to be advised not later than April 2007.  On 23 April 2007, it was ordered that all extant applications be adjourned to a date not before August 2007and that copies of the reports of Ms R, a Family Consultant and dated 14 June 2007 and 21 March 2007 together with the report of Dr E dated 10 October 2006 be provided on a confidential basis to Ms H who was the supervisor of the wife spending time with the children.  A notation was made that the purpose of the adjournment was to enable supervised contact to take place between the mother and the three children pursuant to arrangements made by the Independent Children's Lawyer. 

4. It now returns to me for Phase 2 of its procedural disposition.  I have had the advantage of receiving very careful submissions from Mr Eidelson, Mr Buchecker and Ms McNaught this afternoon.  The matter was stood down for discussion to take place between all practitioners and the parties.  During that time I had the advantage of reading the report of Ms H of 14 October 2007, the psychologist report of Ms W, Department of Education, and that of the Family Consultant, Ms R, of 21 March 2007.

5. Strangely enough, as Mr Eidelson pointed out to me, there is quite a competing picture painted in the report of Ms H when weighed against the reports of Ms R and Ms W.  I need not go into what those differences were or are, save to say that they are quite stark.  It was the early submission of Mr Eidelson namely, that the Independent Children's Lawyer contended that until such time as the matter could be brought to trial the mother's contact, if any, should continue to be supervised.  It was further sought by Mr Buchecker that the wife share in the supervision costs.

6. The matter resumed following a short break and Mr Eidelson addressed me in a very compelling and most erudite manner concerning the discussions that had taken place.  His submissions on behalf of the Independent Children’s Lawyer were very thoughtful and sensitive.  He informed me that the mother had “thought about the situation” and had discussed the issue with her medical practitioner.  Mr Eidelson said the mother now wished to no longer have contact, that is, not to see the children nor even receive photographs or correspondence from them.  It was explained to me that the mother now felt that she was “not emotionally able to cope” with her role in spending time with the children on either a supervised or unsupervised basis.

7. The mother sought to be released from her indirect contact with the father.  Mr Eidelson explained that it was not a position, as he understood it, the mother had arrived at lightly but it was "without question" her wish to have no further involvement with the children until they could "reach out" to her.  It was made clear that she “dearly loved the children” and that she wanted to get her own life back in order. 

8. I heard from Ms McNaught too.  I was informed, and professionally so by Ms McNaught, that the mother was “quite clear” in her instructions.  There were other submissions which I need not recount into this short extempore judgment.

9. Mr Eidelson helpfully pointed out to me a paragraph that lies within the report of Ms H of 14 October 2007 and in the following terms:

   “The last visit was very emotional as [the mother] told the children that she did not know what was going to happen at the next court hearing and although she loved them very much, she might not be able to see them anymore as she emotionally could not go on fighting their father for contact. 

   [L] was crying and clinging to her mother and later told me (Ms [H]) that she was very upset and the whole situation was unfair.  [D] told me that he also is very upset but can't show it or cry as he is a boy but does not want to stop seeing his mother. [S] also spoke and said that he wanted to see his mother and would be very sad if he could not.”

10. It is clearly a very tragic and upsetting situation.  However, when reading the report of Ms H it is very important to weigh the contents of that report against, as I said, the confidential psychological report of Ms W of 17 October 2007 and the report of Ms R of 21 March 2007.  Indeed it is not unfair for me to point out that it was the recommendation of Ms R that the father have sole parental responsibility for the three children in relation to all matters and issues both day to day and in the long term, and that any time the mother may have with the children be limited to no more than four hours a fortnight and to be strictly supervised at all times by a professional supervisor or one approved by the Independent Children's Lawyer.  It was further recommended by Ms R that the mother pay any fees associated with the supervision. 

11. The situation is a sorrowful and despondent one and it is my expectation that the children will “reach out” to their mother in the fullness of time.  It is clear to me that the mother is sensitive to her own position which is one that I do not criticise in that she has the breadth of vision to understand that she too has to get her life in order and move forward unrestrained and without the distressing circumstances in which she has currently found herself.

12. I am extremely confident that the future will be somewhat brighter for the children, but I do that on the basis that from my knowledge of these proceedings the father is a person who will promote the image of the absent mother to the children at all times.  He does not strike me at all as a "no contact" father, but one who has been supportive of this role.  I would hope that in the future there will be a reunion, but that will depend very much upon the mother.  There is not much more I wish to say other than to make the orders sought.

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

Associate

Date:  18 October 2007