Dalziel & Belladonna

[2007] FamCA 1008

FAMILY COURT OF AUSTRALIA

DALZIEL & BELLADONNA [2007] FamCA 1008

FAMILY LAW – children – LAT – family report

Family Law Act 1975 (C’th)

FATHER: MR DALZIEL

MOTHER: MS BELLADONNA

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2236 of 2006

DATE DELIVERED: 24 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 24 August, 2007

REPRESENTATION

COUNSEL FOR THE FATHER: Mr. Strum

SOLICITOR FOR THE FATHER: B. Lester Oldham

COUNSEL FOR THE MOTHER: Ms Phelan

SOLICITOR FOR THE MOTHER: Maeve O’Brien & Assoc

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr D. Crabtree

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Donald S. Lampe

Orders by consent

1. That during the gazetted 2007/2008 long summer school holiday, the time to be spent by the child of the relationship … (the child) born … October, 2003, with the father pursuant to paragraph 3(l) of the orders made on 30 November, 2006 in alternate weekends be extended to commence at 10:00 am. on Friday and conclude at 6:00 pm. on Tuesday. 

1. That in respect of the child’s time with the father and the mother at Christmas in 2007, paragraphs 3 (p) and (q) be suspended and recommence in respect of Christmas in 2008 and thereafter in accordance with the said sub-paragraphs.

1. That in respect of Christmas in 2007, notwithstanding paragraphs (1) and (2) hereof, the child spend time with the father in accordance with paragraph 3(q) of the said order.

IT IS FURTHER ORDERED

1. That Ms. D prepare an updated family report and the costs of that report be initially borne by the father, with ultimate responsibility being determined by agreement or, failing agreement, the trial judge. 

1. That the updated report be filed and served no later than 2 November, 2007. 

1. That all parties have leave to issue subpoenas returnable at 9:30 am. on a Tuesday or Thursday on or prior to 25 October, 2007. 

1. That the further hearing be adjourned to 10:00 am. on 8 November, 2007. 

1. 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.

2. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Brown delivered this day will for all publication and reporting purposes be known as Dalziel & Belladonna.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2236  of 2006

MR DALZIEL

Father

And

MS BELLADONNA

Mother

Independent children’s lawyer

REASONS FOR JUDGMENT

1. The parties have a daughter (the child), born in October, 2003. The mother has another daughter (the older girl), born in August, 1998. 

1. The parties separated in July 2006 when the mother took both girls to her parents’ home in an inner Melbourne suburb.  Proceedings commenced soon after separation and in the course of them the parties made vitriolic allegations against the other.  Both parties filed forms 4 although at the time they saw Ms. D for the preparation of a family report, in about November 2006, there had been no DHS contact.  The mother alleges that the parties’ relationship was characterised by significant sexual abuse of her and domestic violence, and that some inappropriate sexual activity was directed towards the two girls.  The father alleges that the mother is controlling and manipulative, tried to stop the older girl’s father from seeing her and is duplicating that with the parties’ daughter, and that the mother is agitated and frustrated. 

1. After Ms. D’s report was released on 28 November, 2006, Registrar FitzGibbon made interim orders providing for a phased in unsupervised contact regime.  Since 3 January, 2006 the father has spent time with the child from 9:00 to 11:00 am. on each Wednesday and, from 2 March, 2006, on each alternate weekend from 6:00 pm. Friday until 6:00 pm. Sunday.  Both parties agreed the contact is going well.

1. Ms. D reported that the child is a bright and confident child, socially well adjusted and behaving in an age appropriate way.  She said she needs regular and predictable routine of stability and consistency and direct and firm boundaries.  Her interaction with her father was observed to be close and affectionate, she demonstrated no fear, and Ms. D’s recommendation was that the relationship between father and daughter should be normalised.  She did note the veracity of the allegations would need to be determined by the court.

1. Today the parties have negotiated some variations to the existing orders, to provide for the father to have a number of longer periods of time with the child over the forthcoming summer holidays.  The parties seek the preparation of an updated report but cannot agree on who should prepare it.

1. On behalf of the mother it was submitted that she has no confidence in Ms. D and reference was made to an affidavit sworn by her on 23 November, 2006, in which she set out a number of her concerns.  She sought that a family report be prepared by someone other than Ms. D and was content for that to be a family consultant employed by the court.

1. The father and the independent children’s lawyer supported the retention of Ms. D.

1. Ms. H (the family consultant allocated the case pursuant to the less adversarial trial procedures) spoke of the usefulness of both parties having confidence in the report writer;  to that extent she was supportive of the mother’s application.

1. I have read Ms. D’s report.  She made it very clear that the veracity of the parties’ allegations against each other would need to be determined by the court.  Inevitably, the outcome in a case such as this will be directly influenced by findings on the allegations.

1. I have read the affidavit relied on by the mother.  The matters raised in it are not infrequently raised by parties to litigation in this court, being mainly matters of perception.  No doubt Ms. D will be cross-examined in due course about the mother’s allegations (for example, her evidence of Ms. D’s opening remark) but nothing in the mother’s evidence satisfies me that the family should deal with a fresh report writer.  The children have seen Ms. D and the court should be cautious about requiring them to start again with another social scientist.

1. The submissions relating to cost can be dealt with by, in the first instance, requiring the father to pay for Ms. D to prepare the updated report.  The question of who is ultimately responsible for those fees can be determined later, whether by agreement or by the trial judge.

1. I propose to order that an updated report be prepared and released prior to the adjourned date, which I fix as 8 November.  If the report has not been released by 5 November the adjourned date of 8 November will be vacated and another date fixed.  It is important the matter does not return to court until Ms. D’s report is available as that could only lead to further delays and considerable frustration for the parties.

1. I will also make orders providing for the parties to issue subpoenas returnable on any Tuesday or Thursday up until 25 October, 2007.  That should ensure that any documents produced can be inspected prior to the adjourned date.

I certify that the preceding
13 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate.