Drudge and Pell and Anor

[2012] FamCA 996

FAMILY COURT OF AUSTRALIA

DRUDGE & PELL AND ANOR [2012] FamCA 996

FAMILY LAW – whether multiple proceedings be consolidated.
FAMILY LAW – Orders for psychological assessment to gauge how the dynamics of parties relationship effects their capacity to care for the children and to cooperate with each other – incorporate a profile of the women’s attachment history

APPLICANT: Ms Drudge

RESPONDENT:	Ms Pell
SECOND RESPONDENT:	Ms Mitchell

INDEPENDENT CHILDREN’S LAWYER: Mr D Piekarski

FILE NUMBER: DGC 3564 of 2010

DATE DELIVERED: 16 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 16 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Marshall

SOLICITOR FOR THE APPLICANT: Cash & Stavroulakis

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Bayside Solicitors

COUNSEL FOR THE SECOND RESPONDENT: Mr O’Connell

SOLICITOR FOR THE SECOND RESPONDENT: Meier Denison Guymer Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr D Piekarski

Orders

In all of the matters:-

File No (P)DGC3564/2010 – Drudge, Mitchell & Pell,

File No (P)MLC11634/2011 – Drudge, Scott & Pell and
File No (P)MLC10491/2009 – Rennie
IT IS ORDERED THAT:

1.The proceedings No. (P)DGC3564/2010 – Matter of Drudge, Mitchell & Pell concerning the child B born … December 2005 (“B”) and proceedings No. (P)MLC11634/2011 – Matter of Drudge, Scott & Pell (“the consolidated proceedings”) concerning the child C born … March 2009 (“C”) be consolidated and, henceforth, the parties be referred to as follows:-

a)      Ms Drudge as the Applicant Mother;

b)     Ms Pell as the Respondent Maternal Grandmother;

c)      Ms Mitchell as the Second Respondent Father; and

d)     Mr Scott as the Third Respondent Father.

2.Until further order:-

a)      the proceedings No. (P)MLC10491/2011 – Matter of Rennie (“the Rennies’ proceedings”), concerning the child D born … July 2005 (“D”) be heard together with the consolidated proceedings; and

b)     evidence and submissions in the consolidated proceedings be evidence and submissions in the Rennies’ proceedings and the evidence and submissions in the Rennies’ proceedings be evidence and submissions in the consolidated proceedings.

3.As soon as practicable Ms Drudge and Ms Pell do all acts and things necessary to submit to, and obtain, a psychological assessment of themselves by such psychologist or other appropriately qualified person as is nominated by the independent children’s lawyer. Such assessment to include, but not be limited to, expert opinion of how the women relate to each other, how the dynamics of their relationship impact upon their capacity to care for the children and to cooperate with each other and incorporate a profile of the women’s attachment history.

4.Ms Drudge be responsible for payment of one half of the total cost of the psychological assessments of herself and Ms Pell or, alternatively, pay for the psychological assessment of herself and Ms Pell pay for the assessment herself AND IT IS REQUESTED that Victoria Legal Aid fund Ms Drudge’s share of the cost of preparation of the assessment report(s).

5.The independent children’s lawyer be responsible for filing and serving on all parties a copy of the psychological assessments of Ms Drudge and Ms Pell as soon as practicable after publication. Such documents to be filed merely with a cover sheet and await preparation of an affidavit in due course.

6.Contemporaneously with filing the assessment, the independent children’s lawyer notify my Associate, …– that the assessments are filed.

7.A full family report be prepared pursuant to section 62G(2) of the Family Law Act 1975 (Cth). The parties by themselves and the children B born … December 2005, D born … July 2005 and C born … March 2009 attend upon a Family Consultant or Family Consultants nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties comply with all reasonable directions as to attendance upon the said Family Consultant(s) as and when required by the said Family Consultant and the order of assessment interviews be as directed by the Family Consultant. 

8.The assessment interviews for the family report follow publication of the reports of the psychological assessment of Ms Drudge and Ms Pell.

9.The family report deal with the following matters:-

a)      any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that may affect the weight that the court should place on those views;

b) the matters set out in s60CC of the Family Law Act 1975 (Cth) in relation to each child;

c)      an assessment of the capacity of the parents and other relevant persons to cooperate with one another in relation to day to day parenting matters, so far as it is necessary to do so, as well as long term parenting issues;

d)     an observation of each party with the  child or children in respect of whom that party seeks orders or resides or spends time with (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the children);

e)      recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the best interest of the relevant child(ren).

10.I reserve to the parties liberty to apply for any psychiatric or psychological assessments of any other of the parties.

11.Until further order, each party is at liberty to cause subpoena(s) to produce documents to issue returnable before me until the final hearing or on a date notified to the parties by my Chambers for the return of subpoena(s) and, for that purpose, to contact my Associate,.

12.There be liberty to the parties to have the matter listed before me for determination of interim applications as well as for compliance or management issues and for those purposes, to contact my Associate– and copying all other parties to the proceedings into that correspondence.

13.The proceedings up until 1.00 pm this day be transcribed and when transcribed a copy be made available to the parties and placed on the Court file.

14.For case management purposes, and subject to any further order of the Court this matter be allocated for final hearing before me as soon as practicable following the publication of the family report and, for that purpose be listed for mention for directions for trial within 7 days of publication of said report.

AND IT IS NOTED that, subject to further order of the Court, the documents to be produced by Ms E, psychologist, about the child D in compliance with any subpoena not be released prior to the independent children’s lawyer advising each other party to the proceedings and the Court of any recommendations or indications from Ms E that the documents not be released in their entirety for inspection or copying.

AND IT IS FURTHER NOTED that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBERS: DGC 3564 of 2010, MLC11634/2011; and MLC10491/2009

Ms Drudge

Applicant

And

Ms Pell

Respondent

And

Mr Mitchell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

In all of the matters:-

File No (P)DGC3564/2010 – Drudge, Mitchell & Pell,

File No (P)MLC11634/2011 – Drudge, Scott & Pell and
File No (P)MLC10491/2009 – Rennie

1. This matter comes before me on transfer from Senior Registrar FitzGibbon sitting in the Magellan Directions list.

2. It is in the Magellan list of cases, such as it is, because the maternal grandmother of B alleges that the husband of B’ mother has sexually abused the child and that any time or communication between the child and his stepfather will expose the child to an unacceptable risk of further sexual and other abuse and/or psychological harm. The allegations of sexual abuse have a cascading effect and have resulted in proceedings involving other children and families so that there are now three files which it is said, and ultimately I am satisfied, are inter related. The three files involve six parents who are parties and concern relevant children. The same independent children’s lawyer has been appointed for the three children.

3. The transfer from the Senior Registrar was effected during the morning and I have taken the matter without an opportunity to read anything on the Court file. To do otherwise would have likely necessitated the matter(s) being adjourned to another day involving further costs to the parties, which is undesirable, and each party having to return to court which, I accept, is disruptive of family life.

4. During the course of the hearing before me, I raised queries with the parties’ practitioners and asked for an indication of the orders which each party now seeks be made. I did not confine the parties to their applications or responses as filed and asked them to articulate what they actually want by way of a final resolution of the proceedings. I commend the practitioners and parties for their patience and forbearance as I familiarised myself with the proceedings. Apropos of appearances today, I note the following appearances have been entered:-

   a)in File No. (P)DGC3564 of 2010 – Drudge Mitchell & Pell - Ms Marshall of Counsel appears on behalf of the Applicant Mother, Mr Weerappah, Solicitor, appears on behalf of the Respondent Maternal Grandmother, Mr O’Connell of Counsel appears on behalf of the Second Respondent Father, and Mr Piekarski, Solicitor, appears as the Independent Children’s Lawyer;

   b)in File No (P)MLC11634 of 2011 – Drudge, Scott & Pell - Ms Marshall of Counsel appears on behalf of the Applicant Mother, Mr Street, Solicitor, appears by telephone link on behalf of the Respondent Father, Mr Weerappah, Solicitor, appears on behalf of the Second Respondent Maternal Grandmother and Mr Piekarski, Solicitor, appears as the Independent Children’s Lawyer; and

   c)in File No (PMLC10491 of 2009 – Rennie - Ms Bolton of Counsel appears on behalf of the Applicant Husband, Ms Matthews, Solicitor, appears on behalf of the Respondent Wife and Mr Piekarski, Solicitor, appears as the Independent Children’s Lawyer.

The parties

1. I set out hereunder the details of the parties and the children as I now understand them to be having had the benefit of discussions with the parties’ representatives this morning.

2. Ms Drudge is the mother of B born … December 2005 (whose father is Mr Mitchell) and C born … March 2009 (whose father is Mr Scott).  She is the daughter of Ms Pell.  Ms Drudge is 27 years old and resides at F Street, Suburb G with: her current partner, Mr Rennie; their daughter H born … August 2011 (who is not the subject of any proceedings); Mr Rennie’s son D; and Ms Drudge’s son C.  Ms Drudge is not currently employed outside the home.  Until 2011 she worked for the defence forces.

3. Ms Drudge seeks orders that her son C continue to live with her and that she have sole parental responsibility for him, and that she also have sole responsibility for the long term care of her son B who has lived with Ms Pell since infancy.

4. Ms Drudge currently has an intervention order against her mother, Ms Pell, with a final hearing due on 4 July.  The complaint apparently relates to harassment. 

5. Previous consent orders of 25 October 2010 provide for the child B to live with Ms Pell and for Ms Pell to have sole parental responsibility for him.  Ms Drudge now claims that those orders were prepared by Ms Pell and she was told to sign them.  Ms Drudge did not attend court for the making of the orders, which appear to have been made by a Registrar of the Court.

6. Ms Drudge currently sees her son B at a contact facility in Suburb I.  She has seen him there on two occasions, which is every weekend since the making of interim orders. 

7. Ms Drudge’s father resides in Suburb J and he is not a party to the proceedings. 

8. Ms Pell is the mother of Ms Drudge and the grandmother of C and B.  She currently lives with her husband Mr Pell and her grandson B in Suburb K, and she is not employed outside the household.  Mr Pell and Ms Pell have lived together since 2002 and have been married for nine years.  Ms Drudge lived with Mr Pell and Ms Pell for approximately 12 months when she was younger.  B has lived with Ms Pell since he was a few weeks old, and Ms Pell currently has sole parental responsibility for him pursuant to the Order made on 25 October 2010. 

9. Ms Pell is seeking orders that her grandson B continue to reside with her and she continue to have sole parental responsibility for him.  She is seeking orders that her grandson C also reside with her, and that she have shared parental responsibility of C with his father (Mr Scott) to the exclusion of Ms Drudge. 

10. Mr Scott is the father of C.  Mr Scott lives at L Street, Suburb M, Newcastle and is 38 years old.  He is currently unemployed, but previously worked as a storeman in the defence forces, which position he left in 2011.  He does not currently live with a partner. 

11. Mr Scott seeks an order of equal shared parental responsibility of the child C with the maternal grandmother, Ms Pell, to the exclusion of the child’s mother, Ms Drudge, and seeks a further order that C live with Ms Pell and that he see C for one weekend in every six week period until the child turns five.  This contact would occur in Melbourne, with Mr Scott staying either with Ms Pell or at a caravan park.

12. Mr Mitchell is the father of B.  He is currently 27 years old and living in the Suburb N area with his partner.  He is also the father of another child, O, who is five years old and lives with her mother in Suburb P. O is not the subject of these proceedings.  Mr Mitchell lived with B and Ms Pell from New Year’s Eve 2011 until early March 2012.  Prior to that time, from 2008 he was in Sydney with the defence forces, and before then he lived in Queensland.  Before moving to Victoria, Mr Mitchell saw B infrequently and spoke to him on the telephone.  Mr Mitchell currently seeks B fortnightly or weekly by arrangement with Ms Pell. 

13. Mr Mitchell seeks orders that B live with his maternal grandmother, Ms Pell, and that she have sole parental responsibility for the child to the exclusion of the mother, Ms Drudge, and himself.  He also seeks that he spend time with the child as agreed between himself and Ms Pell. 

14. Mr Rennie is Ms Drudge’s partner. He is the father of D (whose mother is Ms Q) and H (currently nine months old, whose mother is Ms Drudge), both of whom currently reside with Mr Rennie and Ms Drudge.  The child C also resides with them.  Mr Rennie is 30 years old and is currently employed as a tradesman, which position he had held for only two days at the date this matter first came before me.  Prior to this he was a stay at home parent, before which he was a tradesman for 12 years.

15. Mr Rennie is seeking orders that Ms Q have supervised contact with their son D.  There are currently interim parenting orders on foot which entitle Ms Q to unsupervised time with D.

16. Ms Q is the mother of D.  Ms Q is 26 years old and currently resides with her father, Mr R, at S Street, Suburb T, which is outside Geelong and a fair way away from any of the other parties or the children with whom these proceedings are concerned.  Ms Rennie works in administration for U Pty Ltd, which position she has held for eight months.  Prior to that she was an administrator for two years with V Pty Ltd.  Mr Rennie and Ms Q separated in December 2008 and divorced in December 2010.  She is currently without a life partner and D is her only child.

17. Ms Q seeks shared parental responsibility of D, and that D live with her and spend alternate weekends with his father.  She currently spends alternate weekends with D and communicates with him otherwise via telephone.  Currently changeovers occur at a car park in Suburb W, however I was informed that the parties are discussing changing this to a location to which would be safer for Ms Q to travel via public transport.

18. Obviously, the fact that Ms Q resides such a geographically far distance from D is one determinant in the amount of face to face time that D can spend with her.

The Children

1. B is six years old having been born in December 2005. He is the child of Ms Drudge and Mr Mitchell and has resided with Ms Pell since he was a few weeks old.  Ms Pell also currently has sole parental responsibility for B.  Apparently, as a result of discussions between Ms Pell and B’s referring doctor, B was referred to psychologist Ms X, who prepared a psychological report which included an allegation by B that Mr Rennie had placed his finger in B’s anus.  Ms X is a counsellor from Y Pty Ltd in Suburb Z, which appears to be an independent counselling organisation.  DHS has also prepared a report on B, dated 25 January 2012, in relation to the incident.  B has also been diagnosed as falling within the autism spectrum.  He attends AA school in Suburb BB. 

2. D is nearly seven years old having been born in July 2005. He is the son of Ms Q and Mr Rennie and currently resides with Ms Drudge and Mr Rennie.  The arrangements for D to live with his father and spend alternate weekends with his mother were formalised in Court Orders of the Federal Magistrates’ Court of 20 April 2010.  D attends G School where he is in Grade One.  Ms Q has expressed concern in relation to D’s school attendance.  His report for 2011 indicates that he was late on 19 days and absent for 40 days.  Mr Rennie is concerned that D is depressed, and the child has thus seen psychologist Ms E on six occasions to date.  Mr Rennie alleges that Ms Q was fully informed and aware of D’s treatment by Ms E, and has herself contacted Ms E. 

3. C is three years old having been born in March 2009. He currently resides with his mother, Ms Drudge, and Mr Rennie.  C was seeing his half-brother B during spend-time arrangements until B made disclosures of sexual abuse.  C attends a childcare centre in Suburb G.

The proceedings

1. On 1 February 2012, Senior Registrar FitzGibbon ordered, inter alia, that proceedings numbered DGC3564/2010 and MLC11634/2011 are consolidated with the proceedings numbered MLC10491/2009 and all three files be heard together.

2. Today I sought submissions and have considered whether the proceedings do need to be heard together. I expressed a preliminary view that the proceedings between Ms Q and Mr Rennie, concerning D (aged six years) could be heard separately and subsequently to the determination of the other more closely related matters. At the very least, I thought that it may represent a significant saving of costs for Ms Q who is in receipt of legal assistance and Ms Pell and her husband who are funding the proceedings privately. However, to the extent that the parties sought to be heard at all on the point, they were unanimously of the view that the proceedings should remain joined. I may reconsider the matter later but for the time being will allocate just the one hearing.

3. I have had the benefit of hearing from Ms DD, Senior Family Consultant who is in charge of allocating the resources of Child Dispute Services to this case. In her opinion, there is likely to be real value in a relationship assessment of the relationship between Ms Pell (maternal grandmother of B and C) and her daughter Ms Drudge (mother of B and C). No party opposed this. I accept Ms DD’s opinion and I will order accordingly. There will also be an order for a full family report to be prepared however preparation of that report should not be commenced until after the relationship assessment concerning Ms Pell and Ms Drudge is completed and published.

1. Otherwise I make orders of a procedural nature for reasons which I have canvassed with the parties and their practitioners to permit the three matters to progress as one for the time being. These reasons will appear on each of the three files which are to remain discrete but travel together.

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 16 May 2012.

Associate:

Date:  2 July 2012