CLAYMAN & BERRERA

[2019] FCCA 664

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLAYMAN & BERRERA [2019] FCCA 664

Catchwords:
FAMILY LAW – Family report requires updating – interim parenting orders made – contravention applications adjourned until after preparation of updated family report – hearing adjourned.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.14.02

Applicant: MR CLAYMAN

Respondent: MS BERRERA

File Number: BRC 10793 of 2015

Judgment of: Judge Egan

Hearing date: 25 February 2019

Date of Last Submission: 25 February 2019

Delivered at: Brisbane

Delivered on: 25 February 2019

REPRESENTATION

Applicant: Mr Clayman in person

Respondent: Ms Berrera in person

IT IS ORDERED UNTIL FURTHER ORDER THAT:

Updated Family Report

1. The parties and the child, [X] born … 2009 (‘the child’), attend upon Ms A for family report interviews on a date and time to be advised by Ms A for the purposes of the preparation of an updated family report to be made available to the Court.

2. The Father pay the costs of the preparation of the updated family report.

Disclosure

1. The Applicant and the Respondent make disclosure in accordance with Division 14.02 of the Federal Circuit Court Rules 2001 in respect of the following classes of documents:

   (a)All text messages and any other communication between the parties from 6 November 2018 to 25 February 2019 inclusive.

Spend time with Father

1. The child spend time with the Father as follows:

   (a)On Sunday 3 March 2019 from 12:00pm to 5:00pm;

   (b)On Sunday 10 March 2019 from 9:00am to 5:00pm;

   (c)From 9:00am Saturday 16 March 2019 to 5:00pm Sunday 17 March 2019;

   (d)From 9:00am Saturday 30 March 2019 to 5:00pm Sunday 31 March 2019

   (e)From 9:00am Saturday 13 April 2019 to 5:00pm Sunday 14 April 2019;

   (f)On Easter Sunday, 21 April 2019, from 11:00am to 5:00pm

   (g)Commencing on 26 April 2019, the Father have time on each alternate weekend commencing at 5:30pm Friday until 5:00pm Sunday.

Sporting Commitments

1. On occasions that the child spends time with the Father, the Father will ensure that the child attends any commitment relating to the child’s sporting activities, advance details of which shall be provided by the Mother to the Father no less than 7 days prior to any said dance commitment including details of the date, time and place of any relevant venue in respect thereof.

Changeover

1. Unless otherwise agreed in writing between the parents all changeovers are to take place at the … Service Station carpark on Street B at Suburb C, QLD.

Hair Follicle Testing

1. The Father shall submit himself at his own expense for hair follicle testing at a QML Laboratory:

   (a)On or before 5^th March 2019;

   (b)At no more than 3 monthly intervals thereafter, until otherwise ordered by the Court.

2. The Father is to provide the hair follicle tests results to Ms A, the family report writer, within 5 days of his receipt of a copy of any of the test results.

General Adjournment

1. The Applicant’s application in a case filed on 10 August 2018 and application for contravention filed on 14 September 2018 be adjourned to the trial call over Judge for further listing on an interim hearing basis at the same time as the listing of this matter for mention on parenting issues subsequent to the preparation of the updated family report by Ms A.

Independent Children’s Lawyer Appointment

1. The child, [X] born … 2009 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings and further, the Independent Children’s Lawyer be at liberty to issue any subpoena they deem relevant to these proceedings.

Liberty to Apply 

1. Each party have liberty to apply upon the giving of 3 days’ notice, each to the other.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 10793 of 2015

MR CLAYMAN

Applicant

And

MS BERRERA

Respondent

REASONS FOR JUDGMENT

1. This matter has a long history.  There is one female child of the relationship who was born on … 2009.  Parenting orders were made by consent by His Honour Judge Baumann (as he then was) on 4 May 2017.  Since that time, the father has spent time with the child, but, during the course of 2018, complained that the child was being withheld by the mother in circumstances where such conduct constituted a contravention of orders made by Judge Baumann.

2. The father filed an application for contravention on 18 May 2018.  The hearing of that application was struck out by order of the Court Registrar on 17 July 2018 due to the non-appearance of either party.  The matters the subject of that application were subsequently re-enlivened by the filing of a further application for contravention on 10 August 2018.  Another contravention application was also filed by the father on 14 September 2018.

3. The contravention application was listed for hearing before the Court today.  It is of relevance that the matter has been the subject of further parenting orders apart from those made by his Honour Judge B.  Those orders were, relevantly, made by Judge Jarrett on 24 September 2018 (whereby the orders made by Judge Baumann on 4 May 2017, as amended on 19 September 2017, were reinstated) and by Judge Turner on 6 November 2018. 

4. The order of Judge Turner made specific provision for time to be spent by the child with the applicant father on four occasions, namely: 

   (a) from 15 December 20118 until 19 December 2018;

   (b) from 10:00am on 25 December 2018 until 29 December 2018;

   (c) from 5 January 2019 until 9 January 2019; and

   (d) from 16 January 2019 until 21 January 2019.

5. It transpired during the course of dialogue between the parties and the bench that though the father had spent time in accordance with subparagraph 1(a) of the order of Judge Turner made on 6 November 2018, the father failed to “turn up” on each of the other specified occasions as set out in the order of her Honour, namely, on 25 December 2018, 5 January 2019 and 16 January 2019.

6. It is common ground that the father has not seen the child since on or about 19 December 2018.  The father presented at Court today in an agitated state.  He, during the course of exchanges between the Court and himself, was not responsive to questions asked of him.  He ultimately packed up his belongings brought by him to Court and left.  That was at a time shortly after the issue of further time for him to spend with the child was the subject of discussion.

7. He left before appropriate orders could be made in that regard.  Nevertheless, the Court had time to express to the father prior to his departure that it was concerned as to the emotional impact upon the child, a young female child as she is, of the father again not attending at nominated times when, by Court order, he was to have time with his daughter.  The mother remained in Court and was generally of assistance in pointing out various aspects associated with orders proposed or considered to be appropriate when aired by the Court.

8. The Court is not satisfied that it is appropriate to continue to hear the contravention applications listed for hearing today.  There is a family report dated 16 May 2016 prepared by one Ms A relating to the family dynamic in this matter.  It is out of date and needs updating.  The father agreed to that course before he left the courtroom, stating that he would be prepared to pay for the preparation of such report.  The way in which the father presented himself at Court today was, in some respects, erratic, possibly explained by his emotional reaction to not having seen his daughter for a good period of time.

9. There may be other reasons for that behaviour.  In any event, it is considered appropriate that the question of contravention be adjourned to a time when the matter can next come before the Court after the preparation of the updated family report. 

10. It is also considered important that an independent children’s lawyer be appointed to act on behalf of, and protect the interests of the child.  If there is substance to the father’s claims that the child has been withheld from him due to the mother intentionally disobeying Court orders, then that is a matter which, appropriately, should be the subject of the Court’s consideration, with the assistance of the independent children’s lawyer who is to be appointed.

11. It is ordered accordingly. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Egan.

Date: 14 March 2019