Condon and Rivers

[2011] FamCA 1005

FAMILY COURT OF AUSTRALIA

CONDON & RIVERS [2011] FamCA 1005

FAMILY LAW - Defended parenting and children’s proceedings – Issue arises as to family violence intervention order to be sought in State Magistrates Court – Evidence previously given in Magistrates Court – History of past intervention orders – Children named as affected persons – Release of family reports so that they are available in evidence to the State Magistrate – Uplifting of s 121 publishing restrictions

Family Law Act 1975 (Cth) Family Law Rules 2004 – Rule 15.04
APPLICANT:	Ms Condon

RESPONDENT: Mr Rivers

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: MLC 482 of 2011

DATE DELIVERED: 22 December 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 19, 20 & 21 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mrs Howe

SOLICITOR FOR THE RESPONDENT: Jane Baldwin

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Buchanan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Septimus Jones & Lee

ORDERS

IT IS ORDERED:

1. THAT each of the Family Reports prepared by Ms C, Family Consultant, and dated 20 May 2011 and 5 December 2011 may be provided to the Magistrate hearing the continuation of the interim intervention order in the Magistrates Court at Suburb D on 17 January 2012 and further, if required, produced to the Family Violence Division Court Co-Ordinator thereof.

2. THAT for the purposes of s 121 of the Family Law Act 1975 (Cth) the provision of the Family Reports to the Magistrate and Co-Ordinator of the Suburb D Magistrates Court does not infringe upon the provisions of this section and this Order may be relied upon to provide appropriate safeguards in that regard.

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 482 of 2011

Ms Condon

Applicant

And

Mr Rivers

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. During the course of the defended parenting and children’s matter, now part heard before me, an application has arisen to permit and authorise a State Magistrate to be provided with the copies of the reports from the family consultant of the Family Court, Ms C, and which documents are in evidence before me in these proceedings.  The first of those reports is dated 20 May 2011 and there is an update report dated 5 December 2011.

2. I have asked Counsel for both of the father and the Independent Children’s Lawyer to make inquiries of the Director of the Child Dispute Resolution Service of this court as to whether there is a consent both from that Director and from the particular family consultant for these reports to be available and be offered up in evidence at the further hearing of the intervention order as sought by the mother and now rescheduled for hearing on 17 January 2011 in the Magistrate’s Court at Suburb D.  That consent is given both by the Court’s Dispute Service and by Ms C.

3. Counsel for the father, Mrs Howell sought on behalf of her client and his new wife, Ms Rivers, the permission to offer each of the reports to the Magistrate so that a more detailed consideration of the circumstances of the extended family and the children identified in the initial application and summons for an intervention order as filed by the mother on 30 August 2011 can be better considered.  Counsel for the Independent Children’s Lawyer, Ms Buchanan, supports providing those documents to the Suburb D Magistrate’s Court.

4. The mother initially opposed the provision of the documents but on the resumption of argument this morning has not vigorously pursued her opposition, though clearly I gather her preference to be that the Magistrate not have the benefit of those family reports and much of the detailed information which has been prepared of and relating to the extended families and the various children, in particular E and L, being the biological children of the mother and the father in these proceedings.

5. As best I can understand the history of the various recently sought intervention orders it is that on 30 August 2011 the mother filed at the Magistrate’s Court at Suburb D an application and summons seeking an order as against Ms Rivers, the new wife of the father.  The basis of the complaint is that her motor vehicle had been damaged when offensive words were written on her car, parked at her home, on or about 26 August 2011.  It is of significance that the mother asserted that “the applicant’s daughter stated she had seen the respondent, Ms Rivers, outside the house earlier.”  She did not give that evidence in this full hearing before me.  Otherwise I have read the brief outline of the incident as contained within the application and summons.

6. On an ex parte basis and for an interim period an order was granted that day and made returnable the following month.  Thereafter and in substitution for the order an undertaking was given to the Magistrate’s Court and the order lapsed in lieu of the undertaking.  A more recent incident has allegedly occurred when the mother asserted that Ms Rivers followed her in her motor vehicle and effectively “tailgated” her car.  As a result of that incident the mother re-approached the Suburb D Magistrate’s Court and, as I understand the facts, reinstated her application for an intervention order.  On the papers, and ex parte, an order was made on or about 15 December 2011 and that is to be reconsidered, at least on an administrative basis, on 17 January 2012.

7. Exhibit “M1” in these proceedings is a copy of that interim intervention order and I observe that the application is made by the mother who is the one and only named affected person.  The respondent is Mrs Rivers.  The concern of Counsel for both the father and the Independent Children’s Lawyer is that in the reinstated application the other affected persons were named as the two children of the marriage, that is, E and L, the child R and the young child, X a child of the mother and her new husband, Mr Nixon.

8. In the context it was submitted that the Suburb D Magistrate’s Court may be asked to extend the affected persons covered by the intervention order on 17 January 2012 and within the past detailed history of this matter the permission of the Court is sought to facilitate Mrs Rivers or her solicitor on the day being able to offer up to be read by the Magistrate, and wholly at the discretion of the Magistrate, the two family reports of Ms C.

9. At least, in an overview, that is the recent history of this intervention order as it has been disclosed to me during these ongoing parenting proceedings.  The family report is a document prepared for this Court and has been received in evidence within this Court.  Family Law Rule 15.04 identifies how the Court may deal with and release copies of that report and there is a power to require the report not to be released to any particular person or otherwise to restrict access to a report.  In this case all parties before me, including the mother, and Ms Rivers, as part of the father’s household, have the document.  The general powers that I have as provided within the Family Law Act and its Rules encompass my ability to make orders in the best interests of the children and to broaden the range of people who may read the reports.

10. My primary concern is that the children have previously been named as affected parties in intervention orders and I am somewhat uncertain as to whether the mother will seek to reinstate them as affected persons in these current proceedings.  She has assured the Court that she will not and that she alone is the affected person on this occasion and she will not extend her claim to include the children, or any of them.  I remain somewhat sceptical of the mother’s intentions, given her past history, and I conclude that it is a prudent and appropriate course of action to release the Family Court Family Welfare Reports and to permit their publication to the limited extent that they can be offered up in evidence to the presiding Magistrate but subject always to his or her discretion to receive them and read and/or rely upon their contents

11. To the extent necessary I therefore exclude the operation of section 121 of the Family Law Act 1975 (Cth) which might otherwise restrict the publication of any part of the report, given that it clearly identifies all members of the respective households now before me in these proceedings.

12. I therefore declare that it is not a breach of section 121 of the Act to produce in a Court and offer up to the Magistrate each of the family reports which I authorise can be read and relied upon, if required, in those continuing intervention proceedings. I will have these ex tempore reasons for judgment transcribed as soon as practicable, placed upon the court file and released to all parties. These reasons themselves may be available to and presented to the Magistrate if it be of any assistance on matters in issue in the proceedings before the Suburb D court.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 22 December 2011.

Associate:

Date: