FINCH & BAKER

[2014] FamCA 978

FAMILY COURT OF AUSTRALIA

FINCH & BAKER [2014] FamCA 978

FAMILY LAW – CHILDREN – Interim – orders for appointment of Independent Children’s Lawyer and preparation of a family report.

APPLICANT: Mr Finch

RESPONDENT: Ms Baker

FILE NUMBER: MLC 5399 of 2010

DATE DELIVERED: 19 September 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 19 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Morley

SOLICITOR FOR THE RESPONDENT: Melbourne Family Lawyers

Orders

1. That pursuant to s 68L(2) of the Family Law Act, the interests of the child U born … 2009  be independently represented by a lawyer and it is requested that Victoria Legal Aid make arrangements as soon as practicable to secure that independent representation of the child's interests.

2. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

3. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

4. That within 48 hours of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

5. That the parties and the child attend upon Dr N psychologist for the purposes of the preparation of a Family Report, the costs of such report to be shared equally between the parties AND THE COURT NOTES that the parties have an appointment with Dr N on 24 October 2014.

6. That until further order paragraph 3(a) of the orders dated 26 June 2014 be suspended.

7. That paragraph 2 of the father’s Application in a Case filed 12 September 2014 be dismissed.

8. That all extant interim applications be adjourned for hearing in the Senior Registrar’s Duty List on 1 December 2014 at 10.00 am.

9. That the directions hearing listed on 22 October 2014 at 10.30 am be vacated.

10. That the mother have leave to file this day her Form 4 notice dated 19 September 2014.

11. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Baker 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 MELBOURNE

FILE NUMBER: MLC 5399 of 2010

Mr Finch

Applicant

And

Ms Baker

Respondent

REASONS FOR JUDGMENT

1. The matter of Finch and Baker comes before me today transferred from an interim hearing list conducted by Senior Registrar Fitzgibbon.  The parties to the proceedings are Mr Finch, the applicant father in the matter.  He is resident in Suburb W.  He has full-time employment as a public servant.  The mother is Ms Baker.  She is also a public servant.  She resides with the child of the relationship at her home in Suburb E. 

2. The parties commenced their relationship in or about 2005 and separated on 1 November 2009.  There is one child of the relationship, U (“the child”), who was born in 2009 and is aged five years. 

3. These parties have had considerable litigation history before the Court in respect of parenting arrangements for the child.  Most recently, orders were made by consent by Registrar Riddiford on 26 June 2014.  Those orders dealt with parenting matters on a final basis.  Essentially, they provided that the child would continue to live with the mother and that he would spend time with the father on an alternate weekend basis, that time to commence on Friday afternoon with the child to be returned to child-care on Monday morning at 9 am.  The orders also made provision for how those arrangements were to work upon the child’s commencement at school, presumably in 2015. 

4. It is common ground between the parties that subsequent to the making of those orders the father has not spent time with the child.  The last occasion upon which the child spent time with his father was on 21 July 2014. 

5. The father filed an Initiating Application in the Court on 26 August 2014.  That application is returnable on 22 October 2014.  It is listed for a directions hearing before a registrar on that day.  In that application, the father seeks final orders that the parties continue to have equal shared parental responsibility.  Further, the father seeks that he have the child each weekend from Friday until Monday.  There are other orders sought by the father insofar as they relate to changeover locations and the time to be spent by the child with the father during school holiday periods. 

6. Subsequent to the filing of that application, the father filed an Application in a Case on 12 September 2014.  That application was listed on an urgent basis as a result of a recovery order being sought as part of that application.

7. In his affidavit material filed in support of that application the father set out the facts upon which he relied.  In summary, it was the father’s position that he was uncertain as to the whereabouts of the mother and the child, that he was uncertain as to their address and that the mother had breached orders insofar as she had then taken the child overseas.  The father complained in his affidavit that he had not been provided with an itinerary in relation to that overseas holiday.  Further, in his affidavit the father complains that the mother was unresponsive to text messages and telephone calls which the father would say heightened his concerns as to the child’s whereabouts and welfare.

8. That application was returnable before Senior Registrar Fitzgibbon on 15 September 2014.  At the time the matter was listed before the Senior Registrar the father had not yet effected personal service of his applications upon the mother.  At that hearing, the father gave oral evidence to the Senior Registrar.  Part of that oral evidence was that the father understood that the mother had left her previous known residential address.  The father stated to the Senior Registrar that he left the Court documents in the mother’s letter box.  The Senior Registrar made orders requiring the father to effect service.  The matter was otherwise adjourned for further hearing to this day.

9. At the hearing before me, the father appeared on his own behalf.  The mother has attended Court and is represented by Mr Melilli of counsel.  The mother has filed a response to an application in a case and two affidavits in which she responds to the affidavit material filed by the father.  The mother seeks that the father’s application for a recovery order be dismissed.  Further, she seeks that the orders relating to time spent between the father and the child be suspended until further order.  The mother seeks orders for the preparation of a Family Report prepared by Dr N, psychologist.

10. The mother informs the Court, through her counsel, that there is an appointment available for the parties to attend upon Dr N on 24 October 2014.  Further, the mother seeks the appointment of an Independent Children’s Lawyer.  The bases upon which the mother relies in seeking those orders are essentially two-fold.  First, it is put on behalf of the mother that the child is exposed to emotional harm if the current orders continue.  In support of that allegation she relies upon statements said to have been made by the father to the child, to the effect that the father no longer wishes to continue his relationship with the child.

11. She refers to telephone conversations which are alleged to have occurred on 29 July 2014 between the father and the child, wherein the father indicated to the child that he was effectively walking away from the child and that he would no longer pursue time with the child.  It should be noted that the father categorically denies those allegations. 

12. Further, the mother says that the child is at risk of emotional harm as a result of comments made by the father, effectively threatening the mother.  In her affidavit material the mother deposes to statements alleged to have been made by the father to the child, to the effect that when driving along the road and going over speed humps, the father has referred to that as driving over the mother, that the father would shoot the mother in the face, and other very troubling threats said to have been made against the mother, by the father to the child.  Again, the father denies those allegations. 

13. In addition to the emotional harm the mother says that the father exposes the child to, there are concerns for the child’s physical safety.  In particular, the mother relies upon her concerns around the child being exposed to guns and being taken shooting by the father.  In support of that allegation, the mother relies upon Annexure D to the father’s affidavit which shows a picture of the child with an ammunition belt slung over his shoulder.

14. The mother expresses concern that the father is not alert to the potential risks to the child were he to be exposed to such pastimes, and as a result she says that at the very least, supervised time is necessary pending further inquiries by the Court and further evidence before the Court that would satisfy the Court as to the child’s physical safety.  In response to the allegation around the hunting and the child being exposed to guns and the like, the father quite properly concedes that this is a hobby which he and the mother engaged in, and have done for many years.  The father says that it is a pastime that the child has been exposed to since he was a very young child and he denies that there is any risk to the child in him continuing to be exposed to that activity, which he enjoys with his father.

15. I am not in a position at this interim hearing to make any determination in relation to the factual matters that are in dispute and which I have highlighted in these Reasons for Judgment. This is a hearing on the papers. In considering parenting issues, I am required to regard the objects as set out in s 60B of the Family Law Act.  Pursuant to s 60CA of the Act, the paramount consideration to be taken into account is the best interests of the child.  I am required to deal with the issues raised by s 60CC, bearing in mind that as this is an interim hearing; final determination of the facts that would give rise to particular considerations has not yet occurred.

16. As I have indicated to the father, the two primary considerations which I must take into account are firstly, the need for the child to have a meaningful relationship with both parents, and the second primary consideration is the concern that the child be protected from harm including family violence, but also emotional and physical harm.  Section 60CC(2A) requires that in applying the two primary considerations the Court is to give greater weight to the consideration set out at subparagraph (b), that is, the need to protect the child from physical or psychological harm; from being subjected to or exposed to abuse, neglect or family violence.

17. Having heard the submissions by the father and Mr Melilli, and having regard to the material that is set out in the mother’s affidavit, I am satisfied that at this point in time it is appropriate that the father’s time be supervised.  There are very grave and serious allegations raised by the mother.  It is agreed between the parties that an Independent Children’s Lawyer is appropriate in this matter.  It is also agreed between the parties that it is appropriate that Dr N prepare a report that will assist the Court in determining all of the issues in dispute.

18. As a result of the common ground between the parties with respect to those matters it is necessary to adjourn the parties’ competing parenting applications to a date on 1 December 2014.  I am satisfied that for that short period between now and 1 December 2014 it is appropriate that there be supervised time. 

19. I note the position of the father when the question of supervised time was flagged, is that he would prefer that there be no time between he and the child pending the adjourned hearing as it his view that the three hour timeframe that is available on a supervised basis is likely to be more traumatic to the child than having no time.

20. In light of the father’s stated position I will make no orders for him to spend time with the child.  However, if upon reflection the father wishes to reconsider his position, it should be noted that the mother has, in open Court, offered her consent to supervised time with specified professional agencies, and if between now and the adjourned hearing the father wishes to avail himself of that time and it can be arranged, then such time should occur.

21. Otherwise I will make orders in the following terms:   

    1.That pursuant to s 68L(2) of the Family Law Act, the interests of the child U born … 2009  be independently represented by a lawyer and it is requested that Victoria Legal Aid make arrangements as soon as practicable to secure that independent representation of the child's interests.

    2.That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

    3.That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

    4.That within 48 hours of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

    5.That the parties and the child attend upon Dr N psychologist for the purposes of the preparation of a Family Report, the costs of such report to be shared equally between the parties AND THE COURT NOTES that the parties have an appointment with Dr N on 24 October 2014.

    6.That until further order paragraph 3(a) of the orders dated 26 June 2014 be suspended.

    7.That paragraph 2 of the father’s Application in a Case filed 12 September 2014 be dismissed.

    8.That all extant interim applications be adjourned for hearing in the Senior Registrar’s Duty List on 1 December 2014 at 10.00am.

    9.That the directions hearing listed on 22 October 2014 at 10.30am be vacated.

    10.That the mother have leave to file this day her Form 4 notice dated 19 September 2014.

    11.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.

22. Finally, I note that I have dismissed the application for a recovery order.  I have dismissed that application on the basis that it has been conceded – again, quite properly by the father – that having had the opportunity of reflecting upon the affidavit material filed by the mother, there is no need for such an order. 

23. I will also note that as part of the submissions of the mother it was suggested that the father’s application is based in mischief, that the father has not been completely frank with the Court insofar as his knowledge as to the mother’s address or indeed as to her whereabouts when she was travelling overseas.  I note that the father admits the text communication which is said to have occurred between the parties in the lead-up to the mother’s travel overseas, which is set out at paragraph 13 of her affidavit filed 17 September 2014.

24. The father says that there is a reasonable explanation for those texts.  He says that he was subject to significant changes in his work environment, which meant that there was uncertainty as to what arrangements could be made for him to spend time with the child in light of the change of his employment.

25. I make no findings in relation to those matters at this point in time.  In the absence of a testing of evidence I am not in a position to make findings in relation to those matters.  Further, I note that the father has not yet had the opportunity to file any affidavit in reply to those affidavits of the mother and has therefore not had the opportunity to put his position before the Court in relation to those various allegations.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 19 September 2014.

Associate: 

Date:  19 September 2014