DUARTE & MORSE

[2015] FamCA 382

FAMILY COURT OF AUSTRALIA

DUARTE & MORSE [2015] FamCA 382

FAMILY LAW – PARENTING – Mother’s application to vary interim parenting orders – Whether there was a change of circumstance – Whether the Court discharged the Independent Children's Lawyer on the previous occasion as asserted by the mother – Finding that the Independent Children’s Lawyer was not discharged by the previous Orders – Orders dismissing the mother’s application to vary the interim parenting orders.

Family Law Rules 1975 (Cth)
Family Law Rules 2004 (Cth) rule 8.02

APPLICANT: Ms Duarte

RESPONDENT: Mr Morse

INTERVENOR: Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 737 of 2014

DATE DELIVERED: 1 May 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 1 May 2015

REPRESENTATION

ADVOCATE FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Kennedy

SOLICITOR FOR THE RESPONDENT: Slater & Gordon Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Wearne

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid New south Wales

COUNSEL FOR THE DEPARTMENT: Ms Kless

Orders

1.   I note my determination that the appointment of the Independent Children’s Lawyer has not been discharged by the making of orders by Justice Stevenson on 5 July 2014.

2.   I dismiss the mother’s application made orally today to be able to attend the children’s school fete on 2 May 2015.

3.   I dismiss the mother’s application filed 19 February 2015.

4.   I mark as Exhibit “A” a Minute of Order proposed by the Independent Children’s Lawyer and I make orders pursuant to paragraphs 1, 2, 3, 4, 5 and 7 of Exhibit A pending further order of the Court.

5.   I make another order pending further order that the mother not permit the children to be in the presence of her partner Mr T at any time they are with her pursuant to those orders.

6.   It is a condition of the orders permitting the mother to exercise her time with the children at her home, pursuant to these orders, that Mr T not be present on the property or the curtilage constituting that home at B Street, Suburb C.

7.   Should the mother be able to provide details of an alternate supervisor for her time with the children pursuant to these orders, the parties are to advise the Independent Children’s Lawyer whether there is any objection to such nominated alternate supervisor, and if there is not, upon the Independent Children’s Lawyer speaking with the alternate supervisor and satisfying herself that the alternate supervisor is suitable and understands the obligations of a supervisor pursuant to these Orders and has signed an undertaking to this Court in similar terms to that signed by the current supervisor Ms D, then the Independent Children’s Lawyer is to make an application to this Court through Chambers for the Court to appoint the alternate supervisor and note the additional days upon which the mother may spend with the children under the supervision of such person.

8.   I amend Order 6.3 of the orders of 25 July 2014 so as to delete “E Pre School” and substitute therein “F Pre School, G Street, Suburb C ”.

9.    It is noted that in the making of these Orders the Court notes no finding has been made that Mr T has harmed any of the children subject to these Orders.

Exhibit A

In the matter of [MORSE], [DUARTE] & [T]
SYC737 / 2014
MINUTE OF PROPOSED FURTHER INTERIM ORDERS

1. Discharge orders Order 4 made on 25 July 2014 and 1 made 23 March 2015, from Monday 4 May 2015.

2. Pending further Order, and conditional upon Orders 3 and 6 the children [H] (“[H]”) born … 2006, J (“[J]”) born … 2010 and [K] (“[K]”) born … 2012 (collectively, “the children”) shall spend time with their mother:

   a)     Commencing 5 May 2015, each Tuesday from 3 pm until 7 pm, such time to be suspended on 19 and 26 May and 2 June 2015; and

   b)     Commencing 9 May 2015, each Saturday from 10 am until 2 pm.

3. The children’s time with the mother shall be at all times be supervised by Ms D.

4. Noted that:

   a)     [Ms D] has given an undertaking to this Court on 23 March 2015, and continues to be bound by that Undertaking; and

   b)     [Ms D] is not available to supervise the children’s time with their mother on Tuesdays between 15 May and 15 June 2015.

5. The children’s time with the mother may take place at the mother’s home.

6. For the purposes of Orders 2 and 5 [Mr T] is restrained, and an injunction granted against him, from being present in the mother’s home when the children are spending time with the mother; or approaching or coming with 100 metres of the children or that place.

7. The children’s time with the mother shall be facilitated by:

   a)     the father delivering the children to [Ms D] together with or without  mother at [Suburb C] Tennis Courts, [L Street, Suburb C] at the commencement of the children’s time with the mother; and

   b)     The father collecting the children from Ms D with or without the mother at [Suburb C] Tennis Courts, [L Street Suburb C] at the conclusion of the children’s time with the mother

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duarte & Morse 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 SYDNEY

FILE NUMBER: SYC 737 of 2014

Ms Duarte

Applicant

And

Mr Morse

Respondent

REASONS FOR JUDGMENT

1. The matter before the Court today arises as a result of directions or Orders I made on 23 March 2015.  On that day, I made an Order amending the Orders of the Court made on 25 July 2014.  The amendment facilitated the children spending time with their mother after a lengthy period of not seeing her at all, and provided that the time to be spent with their mother was supervised by an accepted supervisor, namely, Ms D.  Order 6 made by me on 23 March 2015 adjourned the proceedings to today to consider any variation to the times the children should spend with the mother pending the first day of the final hearing, which is to commence on 3 June 2015 before Rees J.

2. Although the matter listed today is identified as above, the mother seeks to agitate some other matters, some of which might be conveniently disposed of today.  Those matters are:

   (1)Has the appointment of the Independent Children's Lawyer been discharged by dint of orders made by Stevenson J on 25 July 2014?

   (2)The application of the mother filed 19 February 2015 seeking interim parenting orders has not been dismissed.  Can that application be determined?

   (3)The mother seeks the Orders of 25 July 2014 be varied to permit her to attend the children’s school fete with them on Saturday 2 May 2015.

3. Turning to the first of those matters:  has the Independent Children's Lawyer been discharged by orders made 25 July 2014?  The Independent Children's Lawyer submits the mother’s application for the Independent Children's Lawyer to be discharged by the Court was heard and determined by Stevenson J on 10 July 2014.  The Independent Children's Lawyer submits that nothing in the reasons of Stevenson J for the Orders made on 25 July 2014 or the Orders themselves illustrate an intention to disturb the appointment of the Independent Children's Lawyer. 

4. Further, the Independent Children's Lawyer submits that no provision of the Family Law Act1975(Cth) (“the Act”) or the Family Law Rules 2004 (Cth) (“the Rules”) operate to effectively discharge the appointment of an Independent Children’s Lawyer as a result of the interim parenting orders made by Stevenson J on 25 July 2014. The court record shows that on 10 July 2014, Stevenson J dismissed an application by the mother to remove the Independent Children's Lawyer. This Order was made on the day Stevenson J heard the mother’s application for interim parenting orders and other parenting orders sought by other parties to the proceedings.

5. Stevenson J made Orders on 25 July 2014 which largely operate today.  In the last paragraph of her reasons she refers to a minute of order submitted by the Independent Children's Lawyer which was supported by the father and the intervener.  She made orders as set out in that minute.  Clearly, she was not taking any action to discharge the Independent Children's Lawyer.  It is further the case that the Orders made on 25 July 2014 were interim orders only.  An Independent Children's Lawyer’s appointment is not discharged arising out of the making of an interim parenting order by any law or authority known to me, and the only manner in which an Independent Children's Lawyer may be discharged in such circumstances is by direct and specific order.

6. Rule 8.02(5) of the Rules provides that the appointment of an Independent Children’s Lawyer ceases when the initiating application is determined or withdrawn. I conclude, therefore, that the Independent Children's Lawyer continues to be properly appointed and should continue to participate until further order of the Court or the operation of rule 8.02(5).

the mother’s attendance at the school fete

1. The mother’s application is to be able to attend the children’s school for the school fete on 2 May 2015.  Order 6, made 25 July 2014, injuncts the mother attending the F Pre School, G Street, Suburb C.  That Order was made for the reasons set out in the judgment of Stevenson J.  That is, relevantly, the children’s school and the site at which the school fete will be conducted tomorrow, 2 May 2015.  The Independent Children's Lawyer and the father oppose the mother’s application to attend the children’s school, as she now seeks, for the 2 May 2015 school fete.  The department is not in a position to meet the application because no particular notice was provided. 

2. Additionally, the Independent Children's Lawyer says that insufficient notice was provided to enable her to research whether or not there is relevant evidence from the school authorities which might inform this application.  The Independent Children's Lawyer invited me to read that part of Stevenson J’s judgment providing reasons for the injunction she made prohibiting the mother’s attendance at the children’s school.  The judgment recites each parent’s evidence of what occurred at the school fete in May 2014.  The father’s version was corroborated by an eyewitness and was preferred by Stevenson J on that occasion.

3. Both versions of fact recited the necessity for attendance by police at the school in response to an incident of alleged threat and harm with a knife which was alleged by the mother.  The potential for the children to have been traumatised, embarrassed or harmed by the exposure to the events on that day is plain to see.  The Independent Children's Lawyer and the father submit that at this time, the Court could not be satisfied the mother’s attendance at the school fete would not have an adverse impact on the children.

Determination

1. What is really for consideration here is whether the children may suffer some harm as a result of the mother’s attending the school fete, should the mother confront any person or school authority, albeit in a non-physically-aggressive manner.  It has the potential to, at the very least, embarrass the children in an environment which should be devoid of any family disputes and pressure so that the children might progress their education untroubled by such events at that place.  At this time, the Court is not sufficiently informed by acceptable evidence to be able to make a confident prediction as to how the mother may behave if allowed to attend the school fete.  I therefore decline to accede to the mother’s application.

the mother’s application in a case

1. The mother’s application in a case filed 19 February 2015 seeks a substantial change to the interim parenting orders of 25 July 2014 (as amended on 23 March 2015).  The Independent Children's Lawyer does not support the making of any of the orders sought by the mother on an interim basis at this time.  The department does not have instructions in relation to this application.  The husband opposes the making of any of the orders sought by the mother.  

2. The final hearing of the parents’ applications for final parenting orders commences before the trial judge, Rees J, on 3 June 2015.  The mother pursued orders for the parenting of the children on an interim basis before Stevenson J in mid-2014, leading to the Orders of 25 July 2014.  The changed circumstances which would warrant the Court disturbing the Orders made 25 July 2014 is said by the mother to be contained in her affidavit of 22 March 2015 and that of Mr T, her partner, sworn 27 January 2015. 

3. The affidavit of Mr T is lengthy.  It addresses financial matters and matters relevant to the parenting of the subject children.  The relevant change of circumstances which I can discern readily from his evidence is that any charges laid against him, as referred to in the judgment of Stevenson J, have either been dismissed or withdrawn so that there is no other charge outstanding against him.  He also asserts that the allegations made against him, sourced in South Australia, were fabricated and/or false.  In the affidavit of the mother, affirmed 22 March 2015, the evidence of changed circumstances since 25 July 2014 appears to be the removal of any charges against Mr T. 

4. The balance of the evidence which can be given weight in such document really addresses matters which should be addressed at a final hearing, which, as I have said, will commence shortly on 3 June 2015.  Thereafter, as the Court receives and assesses evidence opportunity may arise for the Court to review the interim orders;  however, I do not consider evidence which would warrant the immediate change to the current interim orders in the manner proposed by the mother would be in their best interest at this time. 

5. In further submissions, which I invited from the mother to address other changed circumstances since 25 July 2015, she informed me that her son M, that is, the child of herself and Mr T, was born in 2014.  Clearly, he is an important person in the children’s lives and clearly it is, prima facie, in their best interests to be able to develop a good and close relationship with him.  Having an opportunity to do so is important.  The other matter that the mother raised for my consideration is that there was a period of almost nine months during which she had no contact with the children until my Orders were made on 23 March 2015. 

6. Thus, after a lengthy period of time, she is now spending time with the children and, as was reported to me by the Independent Children's Lawyer at the commencement of the proceedings today, all indications are that that time has been beneficial to the children and no doubt beneficial to the mother. 

7. Given all those circumstances, I am not predisposed to disturb the current Orders other than as will shortly be made in relation to that part of the proceeding which was in fact listed for determination by me today.  I would, therefore, dismiss the mother’s application for interim orders as contained in her application in a case filed 19 February 2015.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 1 May 2015.

Associate: 

Date:  1 May 2015