Cruise and Folks and Anor

[2008] FamCA 888

FAMILY COURT OF AUSTRALIA

CRUISE & FOLKS AND ANOR [2008] FamCA 888

FAMILY LAW – CHILDREN – practice and procedure – proceedings in absence of the father – no substantive orders made – placing of matter in Child responsive program

Family Law Act 1975 (Cth) Division 12A

Goode v Goode (2006) FLC 93-286

APPLICANT: Ms Cruise

1^st RESPONDENT: Mr Folks

2^nd RESPONDENT: Ms Grant

FILE NUMBER: BRC 7195 of 2008

DATE DELIVERED: 8 September 2008

PLACE DELIVERED: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 8 September 2008

REPRESENTATION

APPLICANT: Applicant mother appearing in person

1^ST RESPONDENT : No appearance by the respondent father

2^ND RESPONDENT: Respondent grandmother appearing in person via telephone

Orders

IT IS ORDERED THAT

1. The matter be adjourned before Justice Murphy for a first day of trial at 10.00am on 17 December 2008 in the Brisbane Registry of the Family Court of Australia.

2. The matter be listed for a Compliance Check before a Registrar at 9.00am on 27 November 2008 in the Brisbane Registry of the Family Court of Australia.

3. The mother’s Application in a Case filed on 7 August 2008 be dismissed.

4. The interests, in these proceedings, of the child, … born … October 1992, be independently represented by a lawyer and it is requested that Legal Aid Queensland arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Brisbane.

   (a)It is respectfully requested that the Independent Children's Lawyer be a person other than Ms Jennifer Bolton.

5. The father be granted liberty to apply on the giving of 7 days written notice to each of the other parties in respect of any of the orders made by Justice Murphy today.

6. The mother file an Affidavit of Service of the notice of today’s hearing to the father.

IT IS FURTHER ORDERED THAT

1. Each of the parties sign and execute all such documents and do all such things as they might be directed so as to comply with the Court’s Child Responsive Programme and its requirements.

2. The Family Consultant provide an intake and assessment  report on the first day of trial on the following matters relating to the care, welfare and development of the child, … born … October 1992.

   a.In preparing the report the Family Consultant is directed to consider:

   i.The relevant issues in dispute;

   ii.The views, feelings and experiences of the children;

   iii.The social science research and knowledge relevant to the children and the issues in dispute;

   iv.The parents/parties understanding of and capacity to respond to feedback from the Family Consultant in relation to the children's views, feelings and experiences;

   v.The options proposed  for the children's arrangements;

   vi.Recommendations for any programs, groups or counselling that may assist the parties and/or the children;

   vii.Recommendations for any further assessments, including a full family report;

   viii.Any other matters the Family Consultant considers relate to the care welfare and development of the children;

   b.and further, to consider the relevance, if any, of the following matters:

   i.This matter first entered the family law system in 1995, that is some 12 years ago;

   ii.There are complex intra-family dynamics, including orders in favour of, and the intervention in the proceedings by the maternal grandmother;

   iii.Earlier proceedings in this court and the mother’s own affidavit flag psychiatric or psychological issues as being a potential issue in the proceedings;

   iv.The child of the proceedings, … born … October 1992, is currently aged 15 years and 10 months, and will have turned 16 years of age by the first day of trial. Her views are likely to be a highly important matter in the proceedings;

   v.Earlier Reasons for Judgment by O’Reilly J of 21 February 2005, of which noted:

   “In respect of any future application by the mother for unsupervised contact, reference should be made to the Reasons for Judgment accompanying this order.”

   c.The nominated Family Consultant is to provide the following services in relation to the proceedings:

   i.Interview the parties, the children the subject of the proceedings and any other person which the Family Consultant in his or her opinion, is important to interview for the purposes of assisting the Court make a determination in the proceedings;

   ii.Advise the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to in the proceedings;

   iii.Assist and advise the Court, and give evidence in relation to the proceedings including providing any oral or written reports requested.

IT IS DIRECTED THAT

(a)The Reasons for Judgment of today’s hearing by Justice Murphy, be sent to each of the parties.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7195  of 2008

MS CRUISE

Applicant

And

MR FOLKS

First Respondent

MS GRANT

Second Respondent

Ex Tempore

REASONS FOR JUDGMENT

1. On 7 August 2008 the mother of the child, a daughter born in October 1992 filed an initiating application.  That application sought orders by way of final relief and interim or procedural orders.

2. I have earlier made orders consistent with the Court's less adversarial trial process and Child Responsive Program whereby the matter will be listed before me for first day of hearing on 17 December 2008 with procedural orders directing the parties to do everything necessary so as to comply with the Court's Child Responsive Program.

3. As explained to the mother and the maternal grandmother, who both appear today self-represented, those directions will inevitably include the parties and the child attending upon a family consultant for the purposes of assessment and interview and, subsequently, the receipt by the parties and the Court of a Parents' and Children's Issues Assessment.

4. For reasons also earlier given, it seems to me entirely appropriate to appoint an Independent Children's Lawyer.

5. I reiterate the reasons substantiating that order given earlier and, in particular, note the longstanding period of conflict between the parties – this matter was first before the Court in 1995, some 12 or 13 years ago – the complex intra-familial relationships and the fact that the child, by the time the first day of the hearing occurs, will be 16 years of age.

6. The father in these proceedings was sent correspondence by the Court on 15 August 2008.  He was sent that correspondence to an address in G.  That correspondence notified the father of this application being listed in the judicial duty list today. 

7. That correspondence also advised the father of the terms of orders made by Bell J advising him that a procedural hearing listed to be heard on 18 September 2008 before a Registrar had been vacated.

8. Each of the mother and the maternal grandmother advised me from the Bar table - and for the purposes of today's proceedings I accept - that the father and the child have been living at the address just described for some time. 

9. Furthermore, the affidavit filed by the mother in support of the application before me, indicates that some changeovers for time which the child spends with her grandmother have occurred at that address. 

10. Although there is no formal proof of service before me, it seems to me highly likely that the father is aware of today's proceedings. 

11. I would not, however, proceed to determine those proceedings in circumstances where, ultimately, the decision I made in those proceedings affected what might be described as substantive rights affecting the child and/or the father.  For reasons which will become clear shortly, that is not the case here.

12. As indicated earlier, the matter has a lengthy history of conflict.  Most recently a trial took place before O'Reilly J in respect of which her Honour delivered reasons for judgment on 21 February 2005.  Those reasons, and the orders made by her Honour, contain the following notation:

    In respect of any future application by the mother for unsupervised contact reference should be made to the reasons for judgment accompanying this order. 

13. I have had reference to those reasons for judgment. 

14. Those reasons for judgment speak of evidence given by the mother at the trial. I incorporate in these reasons pars 6 and 7 of her Honour's reasons which relate that evidence by reference to the transcript of the proceedings. (I rely on s 69ZX(3)) in doing so).

15. Her Honour's reasons also refer to expert evidence that was before her Honour, including from a Mr Z, a psychologist, Professor W, who is a psychiatrist, and Dr B, who is also a psychiatrist. 

16. Ultimately, her Honour made orders that the child live with the father; that he be responsible for her day-to-day and long-term care, welfare and development, provided that in respect of decisions concerning the child's schooling, health, and overseas travel the father consult with the mother. 

17. Her Honour also ordered that the child have supervised contact with her mother at the Logan West Contact Centre, or supervised contact with the mother at times and places approved by the father, the supervisor to be either the father or a person approved by the father.  The orders also made provision for unlimited telephone contact.    

18. The mother told me from the Bar table that the time she has been spending with the child most recently has been in conjunction with those times when her mother has been exercising time with the child pursuant to orders in her favour previously obtained by the Court.

19. The maternal grandmother, Ms Grant, was an applicant in proceedings which were ultimately heard before Bell J on 1 August 2007. 

20. On that occasion his Honour ordered that contravention applications that had been filed be dismissed and that the child spend time with her grandmother one weekend per month from after school on Friday until 5 pm Sunday with the child to be returned to the father's residence by 5 pm Sunday.

21. Those orders also provided that the child be entitled to contact the grandmother not later than 5 pm Thursday by internet should she not be able to spend time with her grandmother as arranged pursuant to the Order.

22. It seems to me significant that his Honour also ordered that the grandmother and the respondent father be each restrained from filing any applications in relation to the child except by leave of the Court.  Although the grandmother appears as a respondent to the mother's application today, she seeks no relief from the Court.

23. It is against that background that the mother's initiating application seeks, by way of interim relief, an order that the child live with her. 

24. She, as part of that application, seeks orders that the child spend time with her father every second weekend from 3 pm Friday to 5 pm Sunday, half school holidays and the like. There are additional orders sought with respect to the child spending time with her parents.

25. In support of that application the mother submits that, since the making of orders by O'Reilly J, new legislation governs the hearing of applications for parenting orders, and that, she said, "creates an urgency of itself". 

26. I respectfully disagree with that submission.  In my view, not only does the new legislation not provide any "urgency of itself", that legislation in terms provides that it is not to provide of itself a circumstance justifying a change of circumstances founding applications for further orders.

27. The mother also submits that it has been three and a half years since O'Reilly J's orders and that the child is now approaching 16.  She submits that her affidavit material reveals contraventions of orders by the father in favour of her mother and that the facts that were before O'Reilly J some three years ago should now "be seen in a different light".

28. I have carefully read the affidavit of the mother.  The matters referred to, both in that affidavit and in submissions, might provide a basis for orders effecting a change in the child’s parenting arrangements after a hearing.  In my view, however, the affidavit material does not disclose any basis upon which orders ought be made in the terms sought in the application between now and the hearing of the final application.

29. I am particularly cognisant of the provisions of the Act and what the Full Court had to say about those provisions in the decision in Goode v Goode.  Ultimately, the decision in respect of an interim application has to be a decision about and consistent with, the best interests of the child. 

30. It seems to me that with a child of this child’s age and maturity, and the lengthy conflictual history between the parties, and the pre-existing orders made after a trial some three years ago and orders made recently (albeit in a related matter) in August of 2007, there would need to be very strong evidence to suggest that what is now a care arrangement that has been in place for some three and a half years ought be changed on an interim basis consistent with the child’s best interests before such an Order is made.

31. No submission made to me, nor any evidence presented by the mother, indicates that, on an interim basis, any such decision would be in the child’s best interests. 

32. For those reasons, I dismiss the application of the mother seeking interim relief with respect to the child. 

33. On 17 December 2008 the first day of hearing will occur in respect to the application for final relief. 

34. However, prior to that, there will be some notifications sent by the Court to each of you with respect to directions that will attempt to facilitate interviews with the Family Consultant in respect of things necessary to comply with the Court's Child Responsive Program.

35. I am aware that these proceedings have been conducted in the absence of the father. I have done so because it seems to me that, consistent with Division 12A of the Act I ought proceed with as much expedition as is possible in the child’s best interests.

36. I note that no orders made by me today affect substantive rights in the father in the sense that no substantial orders with respect to time between the child, her mother and her grandmother have been made. Rather procedural orders have been made placing this matter in its appropriate place within the Child Responsive Program and ultimate determination by the Court and the father will receive what seems to me to be adequate notice of those requirements.

37. However, out of an abundance of caution, given that the matter has proceeded today in the manner that it has, I will grant to the father liberty to apply on the giving of seven days' written notice to each of the other parties in respect of any orders made by me today.

38. I will ensure that the Court writes to each of the parties - or writes to the father but copied to each of the parties advising what has occurred today and enclosing a copy of the orders. 

39. I will direct that, when my reasons for judgment today become available and corrected a copy of those reasons be sent to each of the parties.

40. I will, at the same time, require you, Ms Cruise, to formally file an affidavit of service of these proceedings today, when you get the Acknowledgement of Service back from the process-servers, so that the record reflects properly that it was served on that day.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  27 October 2008