Delaney and Timmins

[2010] FamCA 1122

FAMILY COURT OF AUSTRALIA

DELANEY & TIMMINS [2010] FamCA 1122

FAMILY LAW – CHILDREN – Interim

APPLICANT: Mr Delaney

RESPONDENT: Ms Timmins  

INDEPENDENT CHILDREN’S LAWYER: Ms Smith

FILE NUMBER: MLC 9099 of 2007

DATE DELIVERED: 4 November 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 4 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT:

THE RESPONDENT: In person

Orders

IT IS ORDERED NOT BY CONSENT

1. That the father shall undertake supervised urine screens for the detection of drugs within 48 hours of a request by the ICL and provide the results to the ICL and the mother as soon as practicable thereafter.  The father is responsible for all costs associated with the screens.

2. That Ms B shall prepare an addendum/updated Family Report to be released by 17 December 2010, with appointments to be held on 14 December 2010 at the Family Court, Melbourne.

3. That for the purpose of preparing the report, Ms B shall be provided with all material filed since the report of August 2010 and permitted to read any documents released on subpoena, and may be provided with additional material by the ICL with notice to the parties and to be noted as read in the Family Report.

4. That for the purpose of preparing the updated Family Report Ms B will determine who she requires to be available for the purpose of appointments and give notice to the parties prior to 14 December 2010.  The parties are to do all things necessary to comply with attendance and if necessary facilitating attendance by the children or other family members with Ms B as per any request.

5. That the father shall facilitate the child A attending upon Dr K for the purpose of therapeutic counselling, noting such counselling is reportable.

6. That prior to an appointment for A with Dr K, the father is to arrange an appointment for him to meet Dr K.

7. That the father shall within 7 days of this date provide to his solicitor for immediate forwarding to the mother, M’s passport, and in the event that the passport is no longer current, he shall within 7 days of this date advise the mother, and within a further period of 7 days shall provide her with a signed consent for her to obtain a passport for the child M born … August 1996.

8. That the parents shall do all acts and sign any documents required to ensure that A’s counselling with Dr K is paid by Medicare and each parent shall contribute equally to any gap payment.

9. That for the purposes of the final hearing before me, each party shall file and serve any affidavits upon which they seek to rely by 4.00pm on 10 January 2011.

10. That Registrar Field is requested to hold a telephone mention as close as possible after 10 January 2011 on a date to be notified to the parties, to ensure all is ready for trial.

11. That the ICL may file and serve any subpoenas returnable as arranged by her in the Subpoena List.

12. That by 4.00pm on 24 January 2011, each party shall file and serve the following:

    (a)A list of witnesses;

    (b)A final Minute of Orders Sought; and

    (c)A case outline.

13. That pursuant to s 65DA(2) and s 62B, 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.

14. That my Reasons given this day shall be transcribed and a copy retained upon the Court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:    No. MLC 9099 of 2007

MR DELANEY

Applicant

And

MS TIMMINS

Respondent

REASONS FOR JUDGMENT

1. This case is listed for a five-day conclusion of the hearing before me, starting 31 January 2011.  It is a complex and difficult case in which the parties make serious allegations against each other in a protracted and venomous dispute.  Their three boys, aged 14, 10 and eight, grapple with the fallout, currently living in different households with 10-year-old A living his father, and the other two boys living with their mother. 

2. These boys have been the focus of litigation for a number of years, and have experienced various living arrangements, various separations from each other, and various shifting alliances with one or other of their parents.  They clearly and dearly need this case concluded. 

3. The Registrar listed it to today for me to consider if any changes should be made to interim arrangements, and also for some trial directions. 

4. In determining the children’s best interests at this interim stage, I am mindful of the many changes they have already endured, and the vast factual gulf between the parents, each suggestive of very serious problems within the other household, involving allegations of serious emotional abuse, serious physical abuse, and/or serious alienation of the children from one or other parent. 

5. The Independent Children’s Lawyer today has sought random drug testing of the father, arising from a suggestion in the report of psychiatrist Dr E.  That has not been opposed.  She has sought an update to the Family Report, in light of the subsequent availability of Dr E’s report, and in light of a recent Form 4 filed by the father, alleging that the mother has physically abused A.  Again, there was no opposition, nor to the proposal that the report writer should decide for herself whether or not she further interviews the children, and that she should be given updated material by the ICL, including recently subpoenaed DHS files.

6. The ICL has also sought that A start therapeutic counselling.  He has, according to the Family Consultant, made the poignant comment to her in the course of the interviews for the Family Report, that:

   “I’m so used to being lonely, it doesn’t matter any more.”

7. No-one disagreed that A should have the opportunity for counselling.  The issue was as to who would conduct the counselling. 

8. The ICL suggested Dr K.  That was supported by the mother.  Dr K has apparently been involved with the boys, more so the older two boys, less so A, but has had some involvement in counselling with them since ordered by the Court in about 2007.  The father objected, saying – through counsel – initially and erroneously that Dr K was the mother’s counsellor, but that in any event, he is someone in whom the father has lost faith.

9. A party’s faith in a particular counsellor is an important consideration, but the child’s interests always remain paramount in this Court.  Dr K is available.  He has some familiarity with the complexity of these family dynamics. The downside in using him, as well as the father’s purported lack of faith, is that he has already been involved in a reportable capacity, and so logically, he would remain involved in a reportable capacity, and that does rob A of the chance of talking to someone in a confidential setting.

10. Mr L was raised as a possibility by the father.  That would involve A in seeing yet another expert.  He had met him previously, but just for the purposes of a Family Report some time ago.  There was a reference to the possibility of a school counsellor, but there was some sensitivity about the school becoming involved, and also, I am not sure of the expertise of that person.

11. However, doing the best that I can, in the absence of another immediately available, suitable, familiar person, I am going to accept the choice of Dr K.  

12. In any event, to allay the father’s concerns, I have proposed that he should first be allowed to talk to Dr K, so that Dr K may have his perspective, and not only the mother’s recent perspective, as to how A is going. 

13. The mother is unrepresented today, although it seems assisted by her partner, an experienced police officer, I should say, as an aside, I have spoken to her about that, because he will have a role as a witness and that will make it impossible for him to continue assisting her in the way that she might otherwise have wanted.

14. In any event, she sought orders that A immediately move to live with her and that none of the boys see their father unless supervised.  Currently they see him unsupervised, and A has lived with him for more than 15 months.  She also proposed a month where the father not see the children at all, or otherwise that A increase the time that he spends with her, and that the father be restrained from making other applications.  She based her submissions on the Family Report.

15. In fact, the recommendation in that report is for the three boys to live with her.  It is not, overall, for the father to spend supervised time with the boys, and it is not for one month’s suspension of any time at all with their father, unless particular factual matters are met, once the evidence is heard. 

16. Dr E’s report raises issues about the father’s state of mind and mental health.  His reference to supervised time only with the boys, relied on by the mother for the interim proceedings today, was in fact couched in terms of consideration being given to it “if the Court has similar concerns” to those expressed by him.  That was no doubt said by Dr E in the knowledge and from the experience that the Court hears a far broader range of evidence than the material available to any one expert, and can accordingly form a different view, once the case is heard. 

17. Otherwise, the mother relied on the fact that on 26 October this year, the father filed a Notice of Abuse, alleging physical abuse of A by her, and that he effectively ran away from her.  Each has filed further affidavit material about that: he to prove the risks to A presented by the mother, she to deny it and to establish that he is trying to alienate the child.  It is part of the complex matrix for me to try to unpack at trial.  Her account that the father has since recanted, was not an entirely fair assessment of the material.  Nothing is that simple in this case. 

18. I stood the case down today for a period, to give the ICL time to consider the recently subpoenaed DHS material.  She did so.  Having done so, she has made no application to change things in terms of the interim orders, having told me earlier that she retains an open mind and did not propose any application today to change interim orders, given the complexity of the case. 

19. If I am satisfied that a child faces an immediate, unacceptable risk of harm, it is clear that under the Family Law Act, I should make orders, even at an interim stage.  I am not shying away from interim orders, simply to maintain a status quo.  I am concerned that for children, who have had to cope with so many changes, to make more, less than 12 weeks from the balance of the trial, in circumstances of extraordinarily complex family dynamics, would potentially put A and all the boys at risk of harm, by pre-empting what may or may not be the right decision, reasoned on all the available material that must be tested in its entirety.  Accordingly, I propose making the orders, as they have been written out, to reflect the earlier indications that I gave, and added to by me, so that they are now in Minute form. 

20. I was told, otherwise, of a snow boarding trip that the mother was proposing for M, and I have made orders to ensure that he has a passport. 

21. I have made it clear to the parents that each will be judged on their conduct, and that what these boys must have between now and the hearing – I will make it absolutely clear – is safety and to be settled.  If I form the view that either parent has erred in any respect in relation to those aspects, then obviously enough, that will be very much to the forefront of my thinking when I try to determine the appropriate orders for these boys.  It is also imperative, as I have said earlier, that both parents ensure that all their documents are filed on time.  I really must maintain the integrity of the trial date to get this resolved for the boys. 

22. I also want it on record that I have had the discussion with the mother about obtaining legal advice, if she is able to do so.  I have emphasised to her that it is her choice, but it is one that she should prudently consider. I have also made the observations to her as to her partner not being the appropriate advisor.  That observation is made is in good faith, knowing that it would be difficult for her, because he will be out of the court-room for a lot of the time, and may not in any event understand all the nuances of family law, his experience being in the criminal courts.  Otherwise, it is very much up to her as to what she arranges, or even if she has the option to arrange legal representation.  I am not absolutely certain about that.  

    RECORDED  :  NOT TRANSCRIBED

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau.

Associate: 

Date:  4 November 2010