Dunbar and Dunbar (No 3)

[2010] FamCA 753

FAMILY COURT OF AUSTRALIA

DUNBAR & DUNBAR (NO. 3) [2010] FamCA 753

FAMILY LAW – CHILDREN – Final children and parenting orders – Mother ina cute hospital care – Appointment of case guardian – Magellan list of cases unsubstantiated allegations of sexual abuse – report form children’s lawyers and Department of Communities – Final consent orders

APPLICANT: MS DUNBAR

RESPONDENT: MR DUNBAR

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 3294 of 2009

DATE DELIVERED: 17 AUGUST 2010

PLACE DELIVERED: BRISBANE

PLACE HEARD: BRISBANE

JUDGMENT OF: YOUNG J

HEARING DATE: 17 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR GORDON

SOLICITOR FOR THE APPLICANT: BERCK & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR SCOTT-MCKENZIE

SOLICITOR FOR THE RESPONDENT: BUTLER MCDERMOTT LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER MS McLENNAN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER FAMILY LAW SOLUTIONS

Orders

IT IS ORDERED BY CONSENT:

1. THAT all previous Orders of the Court be discharged.

2. THAT the children of the marriage, M born … January 2003 (“M”), R born … September 2005 (“R”) and P born … January 2007 (“P”) (collectively called the “children”), live with the respondent (“father”).

3. THAT the father and mother have equal shared parental responsibility for the children save that, until 31 December 2011, the father have sole parental responsibility regarding the children’s schooling and educational requirements and the management of their immediate health requirements.

4. THAT the children spend such time with and communicate the mother as follows:-

   (a)on a supervised basis as is recommended by a Family Consultant appointed by the Senior Family Consultant of the Family Court of Australia, Brisbane Registry, but on not more than two (2) occasions per week, at E Contact Centre or such other supervisor as may be agreed after 2.30 p.m. on a weekday and one occasion on the weekend, and that if for any reason the parents are unable to attend at E Contact Centre, the parent who is unable to attend will give twenty-four (24) hours notice to the centre;

   (b)upon evidence to the satisfaction of the Independent Children’s Lawyer (if it is prior to the discharge of the Independent Children’s Lawyer), the Case Guardian and the father that the mother is suitably managing any medical or psychiatric condition from which she is suffering , so as not to cause either physical or psychological harm to the children the Case Guardian and father (and the Independent Children’s Lawyer if it is prior to its discharge) will negotiate upon the time the mother spends with the children to increase to unsupervised and overnight for her to attend at the children’s school, day care centre and organised extra-curricular activities as agreed or, if not agreed, on further application to the Court.

5. THAT the father, together with the children, have sole use and occupation of the former matrimonial home at D, Queensland (“former matrimonial home”) pending further order or the settlement of sale of the home or agreement between the parties or until settlement of its sale.

6. THAT the father be solely responsible for any mortgage repayments, rates and other outgoings in respect of the former matrimonial home pending further order.

7. THAT the mother undergo such treatment as is required and/or recommended by Dr. L or her treating psychiatrist.

8. THAT the Independent Children’s Lawyer remain appointed for a period of twelve (12) months from this date.

9. THAT upon giving the father two (2) days notice the Case Guardian spend time with the children for a period of not less than two (2) hours, outside of school hours, on no less than one (1) occasion per month.

10. THAT this order operate as sufficient and proper authority for the Case Guardian appointed on behalf of the mother and for the father to each obtain information and records regarding the children from schools, day care centres, hospitals, doctors and other health providers and each of those organisations are directed to comply with all such reasonable requests.

11. THAT the children’s passports to be delivered to the father’s solicitors upon discharge of the appointment of the Independent children’s Lawyer and for that firm to hold such passports until further order or written agreement of the parties to the release thereof.

12. THAT if any of the children’s birthday falls on a day when the mother is not spending time with the children, she may elect and make arrangements with the supervisor to spend time with the children on such a day in lieu of a day in that week on which she would otherwise spend time with the children in accordance with order 4 hereof.

13. THAT the mother communicate with the children by telephone, with the father to initiate the calls, on two (2) occasions per week, upon provision to the Independent Children’s Lawyer providing the father of satisfactory evidence of the progress of her treatment.

14. THAT until further order, the mother be restrained from going to the former matrimonial home, school, day care centre or the children’s organised extra-curricular activities.

15. THAT the Australian Federal Police place the Children on the Airport Watch List enforced at all international points of arrival and departure in the Commonwealth of Australia and maintain the Children’s names M born … January 2003 (“M”), R born … September 2005 (“R”) and P (“P”) born … January 2007 on the Watch List pending further order.

16. THAT as soon as practicable the father’s solicitor serve a sealed copy of this order upon the proper officer of the Australian Federal Police AND IT IS REQUESTED that Australian Federal Police give force and effect to this order.

17. THAT should the children require counselling, the reports of Ms. A, Dr. L, Dr. W and Dr. N be released to the treating counsellor, with the written approval of the Independent Children’s Lawyer.

18. THAT the Case Guardian upon formal request release the reports of Ms. A, Dr. L and Dr. W to the mother’s treating psychiatrist, from time to time.

19. THAT the father spend time with the children for up to one half of the school holidays, with the mother’s time in Order 4 hereof to be suspended for that period, such period to be notified to the Case Guardian, or mother upon discharge of the case guardian fourteen (14) days prior to such time.

20. THAT upon the mother providing to the Case Guardian a written report, which in the opinion of the Case Guardian demonstrates that the mother is then capable of understanding the issues of and relating to the children, and that she is capable of acting on her own behalf in respect to those issues, the Case Guardian will be  discharged, upon the filing of an affidavit attesting to same, and annexing the report, and providing the other parties no less than thirty (30) days notice and service of same.

21. THAT the mother and the father refrain from:

    (a)denigrating or criticizing each other and/or their families and/or associates to the children; and

    (b)discussing with the children these proceedings (save and except for the effect of the terms of these Orders insofar as the Orders affect the children).

22. THAT the father not drink alcohol to excess whilst in the presence of the children.

23. THAT pursuant to Section 65L of the Family Law Act 1975, compliance with these orders be supervised, as far as practicable for a period not exceeding twelve (12) months, by a Family Consultant appointed by the Senior Family Consultant of the Family Court of Australia Brisbane registry, and that such consultant may report back to the court from time to time at discretion.

24. THAT all documents and records subpoenaed to Court for this hearing be forthwith returned by the Subpoenas Clerk, Brisbane Registry, Family Court to the persons or organisations who produced the documents to the Court.

25. THAT all extant applications both interim and final, be otherwise dismissed and the proceedings be removed from the Magellan list of cases and the docket of Young J.

26. Pursuant to s 62B and s 65DA, 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the mother and father and the Independent Children’s Lawyer.

IT IS NOTED

A.THAT the Case Guardian unequivocally withdraws the wholly unsubstantiated allegations of sexual and other abuse made by the mother against the father and the paternal grandmother in the proceedings.

B.THAT these orders are made on the basis that the Mother has been diagnosed as suffering from a psychiatric condition as set out in the report of Dr L.  Further, and taking into consideration the Mother’s past role with the Children, the Mother’s time with the Children will be reviewed by the parties taking into consideration the Mother’s mental health and the progress of her treatment, and the progress of her time with the Children. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3294 of 2009

MS DUNBAR

Applicant

And

MR DUNBAR

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Dunbar and the Independent Children’s Lawyer and for part of the proceedings the Department of Communities was listed before me for a defended hearing.  Over the period of two days the parties have resolved, on a consent basis, all children and parenting orders, and I have before me minutes of consent orders as to all agreed outcomes.  These short extempore reasons for judgment are not strictly reasons in the usual sense, as the orders have been negotiated and finalised out of court.  But it is important that I formally put on the record certain matters and events that occurred by way of explanation of the consent orders. 

2. I have previously given ex tempore reasons for judgment for the appointment of the Case Guardian for the mother and I will not repeat matters touched upon in those reasons.  The mother, from shortly prior to the commencement of these proceedings, is an in patient in the acute mental health unit at E Hospital.  Throughout the two days of this matter her appointed Case Guardian has been in court and has been giving instructions on her behalf to her legal practitioners.  The father has been in court throughout the proceedings and has instructed his legal practitioners.  The Independent Children’s Lawyer and counsel appointed on her behalf have likewise been in court and actively participating in all issues before the court.

3. Ms Day, of the Department of Communities, was in court initially and for the appointment of the Case Guardian, but thereafter was excused from the further proceedings.  The matters and facts of this case are clearly detailed in the substantial affidavit material and other submissions filed with the court.  The three children are all of tender years and matters of and concerning their upbringing and their relationship with their parents, and all other contested matters, are well documented in the evidence before the court.  There have been numerous past court orders and they are all to be discharged by these orders.  These orders are intended to finally resolve all matters before the court and of all applications, both for final and for interim orders.  Pursuant to the orders now made, all such applications are dismissed and the proceedings will be removed from the Magellan list of cases and from my court docket. 

4. The orders are founded upon the principle of an equal shared parental responsibility subject to the particular limitations imposed by paragraph 3 of the orders.  The children will live with the father.  That is a proper outcome, given the current tragic circumstances of the mother.  The children will spend time and communicate with the mother as the parties have agreed.  Hopefully this will be an evolving outcome, and with the improved health of the mother there will be more meaningful time spent with her by all children.  There is a facility within the orders for past information of a medical nature to be made available to those helping the mother, but upon proper request.  There needs to be a level of stability for the children, and to that extent there is an ongoing restriction placed on the mother’s movements in relation to the children, save otherwise where agreed with the father, or in accordance with these orders.

5. To ensure that the children’s whereabouts are known at all times, there is an order made for the Australian Federal Police to place the names of the children upon the airport watch list, and forthwith that organisation, must be served with a sealed copy of this order by the solicitors for the father. There is an order for the children’s passports in paragraph 11, made in substitution for any current order. Specifically an order is made under section 65L of the Family Law Act 1975 for a level of ongoing supervision through the Brisbane Registry of this court and the appointment by a senior family consultant.  That, as I have emphasised to the parties, is a supervision order that does not involve active day to day or other timely management of issues, but more to provide necessary but limited support and a level of counselling.  It is intended to be of benefit to the children.

6. The parties have requested and the court agrees that the appointment of the independent children’s lawyer should be extended for 12 months beyond this day.  That person has a particular knowledge of the circumstances of the children and the somewhat unique events of this case leading to these orders being made by consent. 

7. There does need to be an independent ongoing person involved over the next year with the knowledge of the mother’s circumstances and the events leading to this day who is available to consider on behalf of the children, matters as they arise and hopefully negotiate any outcome with the Case Guardian and/or the father and/or otherwise is free to approach the court.  But largely and only on matters of necessity as to the best interests and well-being of the children.

8. These orders do not touch upon property settlement.  I make no comment upon the pool of assets because I do not know the dollar figure.  I had encouraged the parties to try and resolve out of court all property issues.  That may or may not involve the sale of the home now being purchased but those matters have been discussed in open court and it is hoped that the solicitors for the father and the mother through the Case Guardian can move on those issues.

9. I include therein the commercial discussions of the raising of money or of other matters that might be necessary for one or both parties on an interim or partial property settlement basis but again I carefully take that matter no further.

10. The orders will also provide injunctions so that the parents do not denigrate each other or other important people in the children’s lives and do not discuss any proceedings with the children.

11. This was potentially a difficult matter because there were not all options available to the court or to the parties in their out of court discussion.  The facts speak for themselves and I do not restate matters that would have been in evidence and upon which further findings would have been made.

12. There are two notations to the order which are self-explanatory but it is important to record and the court understands the unsubstantiated complaints that were made as against the father and others.

13. Those complaints had the effect of drawing this matter into the Magellan list of cases.  There is a document that was provided to the court from the Department of Communities confirming the unsubstantiated nature of the various allegations, albeit with the caveat that I think the most recent allegation was yet to be fully explored and the Department expressed no view on that issue.

14. Having said that however, there is not the slightest scintilla of evidence that would support any finding being made against the father in respect of that most recent complaint of the mother.

15. The report that was before the court from the Department of Communities is document 80 in the court index of cases.  It is dated 13 August 2010 under the signature of Ms Day and that will remain upon the court file.

16. Finally, therefore, it remains for the court to pronounce the final form of orders as agreed by the parties.

17. It is important that the parties, in a practical day to day sense, stand by these negotiated orders.  It is proper for the court to record the involvement of the Case Guardian for the mother who has been here for two days and has significantly contributed to instructions given on her behalf.  Without a Case Guardian it would have been very difficult to have the mother’s interests independently both protected and outlined to the court.

18. There is no provision in the order for the timely discharge of the Case Guardian nor could there be and that is a matter that of necessity will await developments with the mother’s health and wellbeing.  I simply do emphasise that the discharge of the appointment of the Case Guardian must be made by the court.  It can be by consent of all parties but there needs to be the formality of a court discharging that appointment at some future date and time when appropriate.

19. Otherwise I thank counsel for their appearance and contribution to the matter and instructing solicitors who are probably the workhorses behind the scenes in a case like this with all the documentation.

20. With those brief observations which I will have transcribed and placed upon the court file and made available to all parties, I formally pronounce the orders as negotiated by the parties I have signed the formal copy of the orders and the two notations thereto.

21. I formally certify for counsel for all parties and those orders will be entered on the court record.

I certify that the preceding twenty-one
(21) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 17 August 2010.

Associate: …………………………

Date:  …………………………