DOAN & LOCK

[2020] FamCA 439

FAMILY COURT OF AUSTRALIA

DOAN & LOCK [2020] FamCA 439

FAMILY LAW – CHILDREN – Interim – orders made for the child to commence spending overnight time with the father

Family Law Act 1975 (Cth)

APPLICANT: Mr Doan

RESPONDENT: Ms Lock

FILE NUMBER: BRC 10239 of 2012

DATE DELIVERED: 21 May 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 21 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Richard Zande & Associates

SOLICITOR FOR THE RESPONDENT: Keyworth Harris & Lowe Family Lawyers

INDEPENDENT CHILDREN’S LAWYER: Ms T-L Geysen, TLG Law

Orders

1. That the child X born … 2011 (“the child”) spend time with the father as follows:

   (a)on Saturday 23 May 2020 from 10.00am to 4.00pm with changeover to take place at B Group with the father to meet the costs of the changeover;

   (b)on Sunday 24 May 2020 from 10.00am to 4.00pm with changeover to take place at B Group with the father to meet the costs of changeover;

   (c)from after school Friday 29 May 2020 to 4.00pm Saturday 30 May 2020 with changeover on Friday to take place at the child’s school and at B Group on Saturday with the father to meet the costs of the changeover;

   (d)from after school Friday 5 June 2020 to 4.00pm Sunday 7 June 2020 with changeover on Friday to take place at the child’s school and at B Group on Sunday with the father to meet the costs of the changeover;

   (e)from after school Friday 12 June 2020 to return to school Monday 15 June 2020 with changeover to take place at the child’s school;

   (f)from after school Friday 19 June 2020 to return to school Monday 22 June 2020 with changeover to take place at the child’s school;

   (g)every Wednesday from after school (or 9.00am during the school holidays with changeover to take place at McDonald’s Suburb C – D Street, Suburb C) until return to school Thursday (or 5.00pm during the school holidays with changeover to take place at McDonald’s Suburb C – D Street, Suburb C) commencing Wednesday 24 June 2020;

   (h)every second weekend from after school Friday (or 9.00am during the school holidays with changeover to take place at McDonald’s Suburb C – D Street, Suburb C) until return to school Monday (or 5.00pm during the school holidays with changeover to take place at McDonald’s Suburb C – D Street, Suburb C) commencing Friday 26 June 2020.

2. That the Independent Children’s Lawyer have liberty to apply.

Trial Directions

1. That these proceedings be set down for Final Hearing for not more than four (4) days commencing at 10.00am on 31 August 2020 in the Family Court of Australia at Brisbane.

2. That each party file and serve on each other no later than 4.00pm on 10 August 2020:

   (a)one (1) consolidated Affidavit of evidence in chief; and

   (b)one (1) Affidavit of each witness intended to be relied upon at trial.

3. That each party file and serve on each other no later than 4.00pm on 24 August 2020, a case outline setting out:

   (a)a precise minute of the final orders sought including alternatives;

   (b)a relevant chronology; and

   (c)a list of Affidavits and Applications and/or Responses intended to be relied upon at trial.

4. That the Independent Children’s Lawyer ensure that the Family Report Writer,

   
   

   Ms E, is available for cross-examination during the trial.

5. That these proceedings be listed for Case Management Hearing at 9.30am on

   
   17 August 2020

   to ensure the matter is ready to proceed to trial on 31 August

6. That all parties have leave to appear by telephone on 17 August 2020 by using the “AAPT GlobalMeet” telephone conferencing system as follows:

   (a)They shall each telephone … (within Australia only) (toll free) by 9.25am on 17 August 2020;

   (b)They shall each then enter the pass code …; and

   (c)Hold the line until the Court is ready to connect and proceed with the matter.

7. That interpreters be made available by the Court for the purpose of the evidence and cross-examination of the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Doan & Lock has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10239 of 2012

Mr Doan

Applicant

And

Ms Lock

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. This matter has had a very long and hardly distinguished history.  The parties have been in Australia for many years.  They were in a relationship of short duration from around October 2009 and separated in mid-2011; a relationship, it would seem, of no longer than two years.  Through the course of that relationship their child, X born on … 2011 came into their life.  He is often called Y.

2. These parties have had the difficulty of English not being their first language and having very limited access to legal practitioners for much of the litigation that commenced initially in 2013 before a Judge of the Federal Circuit Court of Australia, and resulted in final consent orders made in July 2016 for equal shared parental responsibility; for the mother to be the primary carer and for the father to have unsupervised time with the child.  That was for alternate weekends from 9.00am Saturday to 5.00pm Sunday, alternate Wednesdays and half school holidays.

3. At least by October 2018, the matter was back before the Federal Circuit Court of Australia.  Time had ceased.  Over this now nearly two-year period, the matter has been the subject of many delays.  After the matter was transferred to this Court by Judge Coates on 27 November 2018, and despite the constant efforts of the Independent Children’s Lawyer (“ICL”), Ms Geysen, who has persisted in this matter with great diligence, in my view, there have been many, many delays and many, many interruptions.

4. I do not propose to go through all of them, other than to note that when the matter first came to my attention and came into my docket in or about May 2019 there had been delay and difficulties in having Orders complied with. But, finally, a family report from Ms E filed on or about 9 November 2019 came before the Court and, thankfully, I was able to make some Orders for time consistent with that family report and listed the matter for a trial. The trial had to be adjourned because of the ramifications of section 102NA of the Family Law Act 1975 and the allegations each party makes against the other.  At that stage, the parties were unrepresented and it was a real challenge for the ICL – and, in fact, the Court, despite the best endeavours of interpreters, sometimes in Court, sometimes in telephone, trying to assist the parties.

5. The Orders that were made that provided for the child to have continuing unsupervised time with the father were interrupted by events, it seems, that occurred in early 2020.  Ms Geysen’s Affidavit attaches some documents from the Queensland Police Service, and in short – and although this is untested evidence and the mother has not had an adequate opportunity to provide further information as she will at the trial – what is apparent is that on or about 29 February 2020, as a result of what the mother says was a disclosure by the child, at 11.30pm on that night, the mother took the child to the Suburb G Police Station where the child made disclosure of physical abuse upon him by the father.

6. Subsequently, there is another allegation made by the child, not only against the father, but of physical abuse by a person employed and involved with B Group at Suburb F, which is a service that has provided for changeovers between the parties.

7. The result of the actions of the mother unilaterally is that as and from 22 March 2020, the father has spent no time with X.  She did not bring an application before the Court to vary the Orders.  However, when the matter came before me on or about 29 April 2020, when I was reviewing the trial practicalities, I became concerned that time had ceased and listed the matter for an interim hearing today.

8. The context of this matter is that I have now indicated to the parties, who are thankfully both represented competently by practitioners, that the matter will proceed to trial commencing Monday, 31 August 2020, and I will make trial directions shortly.

9. The issue is what is to occur between now and 31 August 2020 at least.  I am conscious of the fact that the allegations that caused the mother to prevent time – and that is any time at all, not even supervised time – were the allegations that the child has made to the mother.  The mother does not assert that she has witnessed any of this abuse upon the child at that time by the father, because the child was with the father.  The mother has told police that she has obtained medical evidence, although that evidence is not before me.  That is meant to, I think, support the mother’s view that the child, proximate to the time of the alleged assault by the father upon the child, had blood and a “wobbly tooth”.

10. Taken at its highest, the child could be exposed to some risk of being back in the unsupervised care of the father.  However, that must be seen within the context of all the history of this matter which has shown, often, allegations made by the child retracted or at least alleged to be made with the support and influence of the mother, which are all triable issues and I make no findings about them today.  There have been constant interruptions to time, often associated with allegations not properly and probatively proved.  I am satisfied that the visits that the child was having with the father were occurring and he was enjoying those visits, as best I can see it, even though he may have been telling his mother something else.  I accept that he had not had overnight time with the father, but that was something I was contemplating.

11. In the context of the history, the ICL’s position at the commencement of today was for an order to change residence.  To be fair to Ms Geysen, that position was not supportable, in my view, once an earlier trial date was given.  X has been in the primary care of his mother, effectively, since his birth.  A change of residence would be a very significant change for this child and must be carefully assessed.  That is best done, in my view, at a trial when all the areas of risk and parental attitude and capacity can be properly examined and considered.  Accordingly, I made it clear on a preliminary basis that I was not contemplating a change of residence today.  However, I did indicate that I felt the time had arrived for X, who is nine years of age now, to start having extended time with his father.  I wanted the time to be regular so that there was a capacity to monitor the time.  To that end, the ICL prepared an alternate proposal and that has been tendered to the Court today as Exhibit 1 and which is supported by the father.  It speaks for itself.

12. I do not underestimate the difficulties Ms Sparkes will have had today in obtaining instructions from the mother.  As I understand it, Ms Sparkes is in her office in Brisbane.  The mother is by telephone in another part of Brisbane at her home or elsewhere, and there is a remotely associated interpreter who has been providing some assistance at the expense of Legal Aid, for which the Court is thankful.

13. When the matter returned to my list this afternoon, Ms Sparkes said that her instructions were to, essentially, not oppose the orders proposed by the ICL and father, but that she had some concerns with progressing as quickly and having it occupy every weekend rather than every alternate weekend.  I raised with Ms Sparkes my concern about the effect on this child of not having any time with his father now for over two months.  Interruption to the time the child spends with the father has occurred on many occasions before, and I have raised my concerns about the reasons for that previously.

14. In my view, the proposal of the ICL supported by the father is appropriate.  It provides an initial graduation with effectively no overnight time this weekend, moving to overnight time from Friday to Saturday the following weekend, by which time I assume that the child will be back at school if all Queensland schools return, as is anticipated, on 25 May 2020.  Thereafter, for it to be every weekend for the weekend of Friday, 29 May 2020; Friday, 5 June 2020; Friday, 12 June 2020 and then Friday, 19 June 2020, by which time the time will take place from after school Friday to before school Monday.  Furthermore, every Wednesday, the child will spend time with the father from after school until before school Thursday. 

15. In the circumstances, I propose to make my standard trial directions.

16. In my view, the benefit of these orders is to progress the child’s time to overnight time, which is appropriate, in my view, on the evidence at this stage, to preserve, at least until trial the child’s relationship with the father when the whole of the matters can be considered more fully.  The mother remains as the primary carer and to allow the child to have an integration with his father and his school, which will occur from both collecting initially and then collecting and returning the child to school.  In circumstances where this child’s school attendance has, at times, been an issue, the father’s involvement with the school community is, I think, a positive factor in this case.  As and from 24 June 2020, when time will then be fortnightly on weekends, the child will spend each Wednesday overnight.  This will allow both the mother to monitor the time the child spends with the father, to which she can give evidence at the trial, and for the father to monitor the living arrangements of the mother spending time and caring for the child until trial.

17. In the circumstances and for those reasons, I believe these interim orders are in the best interests of the child and I make them, but note that they do not have the full consent of the mother.  I would not want her to be mis-described

18. In the circumstances, I propose to make my standard trial directions.

19. Obviously, it will be important for the trial that not only areas of past dispute are dealt with appropriately, but I ought have sufficient time for the parties to provide me with their evidence as to how these interim arrangements made today have progressed.  I would ask ICL to be alert to any developments at school which might require, at the very least, a subpoena to the school to be available close to when the trial occurs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 21 May 2020.

Associate: 

Date:  5 June 2020