Cotter and Harry

[2011] FamCA 704

FAMILY COURT OF AUSTRALIA

COTTER & HARRY [2011] FamCA 704

FAMILY LAW – CHILDREN – stay application

Family Law Act 1975 (Cth)

APPLICANT: Ms Cotter

RESPONDENT: Mr Harry 

INDEPENDENT CHILDREN’S LAWYER: Duncan Holmes

INTERVENOR: Director-General, Department of Family and Community Services

FILE NUMBER: SYC 1928 of 2007

DATE DELIVERED: 17 August 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 17 August 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Autore & Associates

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Slade Manwaring

SOLICITOR FOR THE INTERVENOR: Crown Solicitor’s Office

Orders

1. The mother’s application in a case filed 10 August 2011 be dismissed.

2. Leave granted to the Department of Human Services for photocopy access to all subpoenaed material and to any material that has already been made an exhibit.

3. The costs of all parties for today be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Cotter & Harry 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 SYDNEY

FILE NUMBER: SYC 1928 of 2007

Ms Cotter  

Applicant

And

Mr Harry

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Justice Cronin heard, amongst other things, an interim application that was filed by the mother to suspend orders that I made in 2009 for B born in 2004 (“the child”) to spend time with her father.  That application was heard in the context of an application for final orders by the mother which would have the effect of eliminating the child’s father from her life by seeking an order for sole parental responsibility and seeking that all orders for the child to spend time with her father be discharged.  The solicitor for the mother has confirmed that that is the final position which the mother is seeking to achieve.  

2. The father has indicated to me today that his application for final orders is for a change in where the child lives, so that she lives with him.

3. The mother has made an application for a stay of the interim orders made by Cronin J on 21 July 2011 pending an appeal against those orders which the mother has filed. 

4. The Independent Children's Lawyer does not support the mother’s application for a stay of the interim orders.

5. The Department of Family and Community Services (“the Department”) has, as a matter of right, filed a notice of intervention. Ms Samuels on behalf of the Department has today indicated that at this stage the Department’s motivation for intervening is to be able to access the material on the file so that the Department can form a view as to what might be in the child’s best interests.  Their position today is that they neither support the mother’s application for a stay of Justice Cronin’s interim orders nor do they oppose that application.

6. The notice of appeal filed by the mother sets out a number of grounds of appeal.

7. The first is that the application which Cronin J dealt with at the hearing on 18 July 2011 and by way of orders was not before him at the date of the hearing.  I do not understand that ground of appeal.  The mother’s application for suspension of the orders was clearly before him and that is what His Honour dealt with.  He dismissed that application but made a minor variation by altering the changeover point.

8. The second ground of appeal was that the mother was not in a position to properly respond to the father’s application.  The father’s interim application was for the child to come and live with him on an interim basis and His Honour notes in his reasons for judgment that the focus of the hearing quickly moved from that back to the mother’s application.  The orders that His Honour made in effect dismissed the father’s application so I am unable to understand how that could be a ground for complaint in appeal.

9. The third matter raised in the mother’s grounds of appeal is that the Independent Children's Lawyer had not re-interviewed the child.  As is clear from His Honour’s reasons, His Honour was well aware of that.  The Independent Children's Lawyer informs me that the Independent Children's Lawyer took the view that he was not going to re-interview the child, who is still 7 years of age, in the context of the interim application as the child has been interviewed on multiple occasions to an extent which the Independent Children's Lawyer submits today borders on systems abuse.  There can be little merit in this ground of appeal.

10. The other ground of appeal is that His Honour erred in finding that the Department of Human Services had no concerns as to the safety and welfare of the child.  That is not in fact what His Honour found.  What His Honour said in paragraph 33 was that the Department had on two occasions declined the invitation to intervene in the proceedings in the Family Court and he inferred from that that they had deferred to the decision of the Family Court. It is not the case that His Honour assumes that the Department had no concerns for the safety and welfare of the child.

11. Accordingly, I am unable to say that there are any reasonable grounds upon which the mother would succeed on an appeal based on the notice of appeal which she has filed. 

12. These proceedings have a very long history.  His Honour has set out in fairly clear terms the reasons why he declined to substantially interfere, on an interim basis, with the orders that I made in 2009. 

13. I am unable to conclude that it is not in the child’s best interests for her to have the opportunity of spending time with the father in accordance with the current orders.  Accordingly I dismiss the mother’s application for a stay. 

14. I have been informed by the Independent Children's Lawyer that he has made a successful application for expedition based on the recent memorandum by G, the family consultant, which sets out the key issues which are as follows:

    14.1.which parent the child ought to live with;

    14.2.what periods of time she ought to spend with the other parent;

    14.3.if the child lives with her father, whether or time with her mother should be supervised;

    14.4.should the child come into contact with her mother’s partner;

    14.5.the impact on the child of the ongoing parental conflict.

15. I have also been informed that the child is currently expressing a reluctance to go and see her father. That is not an unusual feature in circumstances of high conflict of long duration such as exists in this matter.  The mother should know that the effect of the order that I have just made is that the orders of 2009 as varied by Justice Cronin remain in operation and she has an obligation to ensure that those orders are put into effect.

I certify that the preceding fifteen (15) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts on 17 August 2011.

Associate:

Date: 19.8.2011