Darcy and Cameroon

[2010] FamCA 345

FAMILY COURT OF AUSTRALIA

DARCY & CAMEROON [2010] FamCA 345

FAMILY LAW – PROCEDURAL – Interim orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Darcy

RESPONDENT: Mr Cameroon

INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

FILE NUMBER: ADC 928 of 2007

DATE DELIVERED: 2 March 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 2 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Charman

SOLICITOR FOR THE APPLICANT: Ian Charman & Associates

COUNSEL FOR THE RESPONDENT: Mr Reynolds

SOLICITOR FOR THE RESPONDENT: SRG Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Croft

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

Orders

1. That during the period of the adjournment the child … born … July 1998 spend time with the mother from 3:30pm on Tuesday 2 March 2010 until 3:30pm on Friday 5 March 2010 and from the commencement of school on Tuesday 9 March 2010 until the commencement of school on Wednesday 10 March 2010.

2. That the handover at the conclusion of time spent on Friday 5 March 2010 take place inside the Adelaide Police Station.

3. That Dr A, family consultant contact the Principal and/or the School Counsellor at the said child’s school and provide a report as to her discussion with those persons orally if necessary at 9:00am on 10 March 2010.

4. That further consideration of the Application in a Case filed by the mother be adjourned to 9:00am on 10 March 2010.

5. That pursuant to s 62B and s 65DA(2) 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 are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 928 of 2007

MS DARCY

Applicant

And

MR CAMEROON

Respondent

EX TEMPORE REASONS

1. This matter has been called on urgently before me today, effectively, upon the application of the mother.  The reason for it being called on urgently arises from the result of an interview conducted this morning by Dr A, family consultant, with the child the subject of these proceedings.  That was an interview which was undertaken pursuant to my order made on 19 February 2010 and the matter was then due back before me on 10 March 2010 for the purposes of receiving either a written report, if Dr A was able to prepare one, or an oral report if she was not.

2. In any event, the interview was conducted this morning and Dr A has provided an oral report to the Court pursuant to my order.  She has expressed concerns about the child’s current mental state.  The child, although initially appearing comfortable and not in any distress, during the course of the interview did become extremely distressed when making comments to Dr A about the alleged behaviour of her father, for example, putting his hand over her mouth such that she has had difficulty in breathing, hitting her and making her sit on a couch.  She also expressed fear of her father knowing what she was saying to the family consultant, and indeed she requested Dr A to not make notes of what she was saying and not report the matter such that her father would become aware of what she was saying.  Dr A though, had to tell the child that she would have to report to the Court what she was saying. 

3. The other matter I note from the report of Dr A today is that the child made it clear to Dr A that she did not want to see her father at that point in time. 

4. Now, Dr A has been involved in this matter for some time.  She has provided at least one report previously, she has interviewed or spoken to the child on four or five occasions, and she is well aware of the history of this matter and the issues in dispute.  As a result of that, although Dr A was concerned about the child returning to her father, she said quite candidly that she was also concerned about the child being in the care of her mother, given Dr A’s previous assessment of the mother’s conduct and her behaviour towards the child.

5. However, Dr A felt sufficiently concerned about the child’s distress today to make the recommendation that the child not return to the father immediately, but return home with mother, stay with mother for a period of time not specified by Dr A and then return to her father, but clearly on the understanding, and she expressed it in the way of perhaps having the father give an undertaking to the Court about appreciating the views of the child and respecting her wishes and not placing the child in any position of distress.

6. This case, as I have said, is currently adjourned until 10 March 2010, which is next Wednesday.  Obviously, the primary issue for me today is what living arrangements I should put in place.  Whatever I do though, I propose only to address the period of time between now and next Wednesday. 

7. Dr A made other recommendations, which I need to mention, apart from the living arrangements for the child, namely that the child should immediately commence counselling sessions with someone like Mr PE, such that her mental state can be assessed and Mr PE work with the child under a mental health plan.  That can be arranged by a referral from a General Practitioner to Mr PE, or to his colleague, so that there is a manageable cost to the parties in that exercise. That is a recommendation which all counsel, including the Independent Children’s Lawyer have urged me to take up, and the advantage of having the matter back on Wednesday is that that will enable enquiries to be made about that counselling being put in place.

8. Separate to that, Dr A recommended that each of the parties see someone like Mr F, Psychologist, for the purposes of an assessment and to impress upon the parties the advantages of and allowing them to understand and appreciate child-focussed parenting.  That recommendation also found favour with both counsel and the Independent Children’s Lawyer.  It is also a matter that can be investigated between now and Wednesday and I want that to happen, but I would be surprised if it was something that could be put in place between now and then.  Equally, of course the counselling for the child could not be put in place between now and then, but at least it gives a timeframe to work with.

9. Given that I will be coming back to the matter next week, Dr A has indicated that she would like to pursue speaking to the principal and/or the school counsellor at the child’s school.  That was something which was envisaged prior to the interview today, but Dr A said that she had not been able to arrange that.  Dr A can now speak to those persons and provide a further report.  If she cannot commit anything to writing - if she has not got the time to do that, and I appreciate she would not - then a further oral report from her on the adjourned hearing date might assist in what happens to this matter in the immediate future.

10. Thus in terms of the difficult decision that I have to make today, which is the immediate living arrangements for the child, I have the recommendation which I have outlined from the Family Consultant, Mr Reynolds for the mother, urges me to leave the child with the mother between now and next Wednesday to provide the child with some stability, and Mr Charman, for the father, submits the opposite, namely, that the child should remain with father.  Mr Croft, the Independent Children’s Lawyer, has suggested that the Family Consultant’s initial recommendation should be adopted, however, he submits that the child should then remain with mother until next week.

11. I do not propose to repeat the remarks that I have made during the course of submissions today.  I have made similar remarks on previous occasions, but in summary I am very concerned at the report I have received from Dr A, I am concerned about this child, she is clearly suffering from the conflict that the parties are still engaged in.  It seems this child has known nothing but conflict from her parents for most of her life.  She is now 11 and a half years old, approaching 12.  She deserves better.  Unfortunately though, my hands are tied in terms of the options that I have.  I only have the parties as the options in terms of who I leave this child with, even on a short term basis, until next Wednesday. 

12. If there was another option, another viable option, I can say without hesitation that I would be looking seriously at that, given the history of this matter, the reports from Dr A and the like and my own assessment of how the parties have behaved in this matter.  I do not know why the child is suffering this distress at the moment.  I cannot make any finding about that.  On the one hand, there are the past allegations of emotional abuse and coaching by the mother, which are allegations that I have accepted, at least from a preliminary point of view.  I am concerned that it might still be the mother’s influence upon the child which has led to the child’s distress today, but I cannot make any finding about that.  On the other hand, there are the mother’s allegations, which she says came from the child, of the father’s behaviour towards the child which, if it is true, obviously would explain the child’s distress. However, this case has been proceeding for a long time, and the father has been the subject of numerous allegations.  He has dealt with them in the sense of answering them, and he has reached a point where he has the primary care of the child.  Some of the allegations that the child is making today are not new and they have been raised before and considered before. 

13. To repeat, I cannot make any findings about what is the cause of the child’s distress today. In the circumstances though I am going to accept the recommendations of the Family Consultant and order that the child resume spending time with her mother.  The question, then, is whether I leave the child with the mother until next Wednesday, or whether I provide for the child to spend some time with the father.  The latter is the guarded recommendation of Dr A.  It is not the recommendation of the Independent Children’s Lawyer, but in my view, it is an appropriate course to take, given the uncertainty about what is causing this child’s distress. 

14. Thus I propose to allow the child to spend time with the father between now and Wednesday.   

I certify that the preceding 14 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 2 March 2010.

Associate