Flood and Piper and Ors (No. 2)

[2009] FamCA 209

FAMILY COURT OF AUSTRALIA

FLOOD & PIPER AND ORS (NO. 2) [2009] FamCA 209

FAMILY LAW – CHILDREN – Interim orders – Time the child spends with the Mother – Part-heard in Newcastle – The Mother refused to re-enter Court leaving counsel without instructions – Time spent with the Mother to be supervised by the Paternal Grandfather or alternate supervisor nominated by the Mother or approved by the Independent Children’s Lawyer – any complaints of abuse to be accompanied by copy of Reasons for Judgments

APPLICANT: Mr Flood

FIRST RESPONDENT: Ms Piper

SECOND RESPONDENT PATERNAL

GRANDMOTHER:

Mrs Flood

INTERVENER: Director-General, Department of Community Services

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: NCC 1462 of 2007

DATE DELIVERED: 16 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane via video link to Newcastle

JUDGMENT OF: Barry J

HEARING DATE: 16 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kelly of Counsel appeared for the Applicant Father

SOLICITORS FOR THE APPLICANT: Hunter Family Law Centre

COUNSEL FOR THE FIRST

RESPONDENT MOTHER:

Mr Hartley of Counsel appeared for the First Respondent Mother

SOLICITORS FOR THE FIRST

RESPONDENT MOTHER:

Meredith & Co Solicitors

COUNSEL FOR THE SECOND RESPONDENT PATERNAL GRANDMOTHER: Mr Williamson of Counsel appeared for the Second Respondent Paternal Grandmother

SOLICITORS FOR THE SECOND RESPONDENT PATERNAL GRANDMOTHER: Craney Family Solicitors

SOLICITOR FOR THE INTERVENER: Ms Kohler, Solicitor of Crown Law Office New South Wales appeared for the Intervener

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Gorton of Counsel appeared for the Independent Children’s Lawyer

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Legal Aid Commission of New South Wales

ORDERS

IT IS ORDERED THAT:

1. All previous parenting orders in relation to the children, S born … January 2002 and D born … April 2003 (“the children”) be discharged.

2. The Father and Paternal Grandmother have joint parental responsibility for the children.

3. The children live with the Father on condition that he reside with the Paternal Grandmother.

4. The Paternal Grandmother to notify the Registry Manager of the Newcastle Registry of the Family Court of Australia in writing forthwith in the event the children are no longer residing in her home.

5. The Mother shall spend time with the children as agreed between the parties in writing but failing agreement as follows:

   a.commencing Saturday 21 March 2009 from 12 noon to 4.00 pm and

   thereafter at the same time each alternate Saturday;

   b.Wednesday 26 March 2009 from 3.30 pm to 5.30 pm; and

   c.commencing Wednesday 22 April 2009 from 3.30 pm to 5.30 pm and

   thereafter at the same time each alternate Wednesday.

6. The time the children spend with the Mother is to be supervised by either:

   a.the Paternal Grandfather who is at liberty to have another person attend with him while he is supervising the time the children spend with the Mother; or

   b.a person nominated by the Mother and approved by the Independent Children’s Lawyer (after the Independent Children’s Lawyer has accorded the Father the opportunity to be heard as to the suitability of any person nominated by the Mother);

   c.in the event either parent is dissatisfied with the decision of the Independent Children’s Lawyer in relation to the approval/non-approval of a supervisor nominated by the Mother the matter may be referred back to this Honourable Court to be heard and determined by such Judge as may be available to hear such application in the Family Court at Newcastle.

7. In the event the Paternal Grandfather is unable to find a suitable person to accompany him for a scheduled supervised contact time of the Mother with the children, such time shall be cancelled but the Father shall arrange make up time for the Mother as soon as reasonably practicable.

8. Unless otherwise agreed the time the children spend with the Mother is to occur at O Park, G, New South Wales.

9. The time the children spend with the Mother as set out above is suspended from

   
   27 March 2009

   until 10 April 2009.

10. The Mother is to advise the Father in writing (which could be via SMS message to his mobile telephone) not later than forty-eight (48) hours prior to the commencement of any scheduled time for the children to spend time with the Mother, of her intention to spend the designated supervised time with the children.  In the event such notice is not given the Mother’s supervised time with the children is cancelled for that pending contact period.

11. The Father and the Paternal Grandmother to use their best endeavours to ensure that the Paternal Grandfather attends upon the Independent Children’s Lawyer for the purpose of him explaining to the Paternal Grandfather his duties as a supervisor of the children’s time with the Mother.

12. If a supervisor is nominated by the Mother and agreed to by the Independent Children’s Lawyer and Father the Mother is to use her best endeavours to ensure that this person attends upon the Independent Children’s Lawyer for the purposes of him explaining to this person his/her duties as a supervisor of the children’s time with the Mother.

13. All parties granted liberty to apply within seven (7) days notice to all other parties for hearing by video link as to whether any variation is sought to these Orders.  Such matter to be listed before the Honourable Justice Barry or in the event of his unavailability such person nominated by the Senior Resident Judge of this Court in Newcastle. 

14. All parties are at liberty to attend the children’s school.

15. Neither parent to discuss past allegations of abuse with the children or either of them or knowingly permit any other person to do so.

16. Within seven (7) days of the date of these Orders each party is to provide the other with their residential address, landline telephone number, mobile telephone number and keep the other advised within twenty-four (24) hours of any change.

17. The Father do all acts and things and execute all documents so as to authorise the children’s schools to provide copies of all documents to the Mother that have been made available to the Father, including but not limited to school reports, school photos, notification of events and functions and notification of parent teacher nights and these orders are sufficient authority for such a purpose.

18. Each party must ensure that the other parent is kept informed as soon as is reasonably practicable if either of the children are hospitalised while in their care.

19. Neither parent shall cause the children to change the school that they currently attend without the written agreement of the other parent.

20. Within forty-eight (48) hours of the date of these Orders the Father is to provide a copy of the Orders to the Principal of the children’s school.

21. Each party is at liberty to apply to re-list the matter upon seven (7) days written notice to all other parties.

22. If any party intends to make any notification to any person in authority that the children, or either of them, have been the subject of abuse by any person they shall, at the time of making the notification to such person to whom they are making the complaint provide them with the following:

    a.a copy of these Orders and the Orders of 13 March 2009;

    b.a copy of the Orders of Justice Mullane dated 30 September 2008;

    c.a copy of the Reasons for Judgment of Justice Mullane dated 30 September 2008;

    d.a copy of the report of Dr W dated 9 March 2009;

    e.a copy of the Reasons for Judgment of Justice Barry dated 13 March 2009 and 16 March 2009.

23. If any party intends to make any notification by telephone to any person in authority that the children, or either of them, have been the subject of abuse by any person, then the complainant is to read to the person in authority a copy of these Orders and the Orders of 13 March 2009 and thereafter forthwith forward to that authority copies of Justice Mullane’s Reasons for Judgment of 30 September and Justice Barry’s Reasons for Judgment of 13 March 2009 and 16 March 2009.

24. The Independent Children’s Lawyer is to be discharged six (6) months from the date hereof unless a Judge of this Court elects to extend the period of such appointment.

25. Pursuant to s 62B and s 65DA(2), 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 “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE VIA VIDEO LINK TO NEWCASTLE

FILE NUMBER: NCC 1462 of 2007

MR FLOOD

Applicant

And

MS PIPER

First Respondent

MRS FLOOD
Second Respondent

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES
Intervener

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter was set down for three days last week in the Family Court at Newcastle.  The matter did not conclude within the time allocated.  On Friday last for reasons given at the time I made orders until further order that the children live with their father.  There was a further order that the father and paternal grandmother have parental responsibility.  The children were to live with their father on condition he resides with his parents. 

2. The question of what time the mother should spend with her son and daughter was adjourned to today’s date but I indicated it should be supervised, and I did not regard the maternal grandmother as a suitable supervisor, a role she has carried out in the past. 

3. The matter has been heard on today’s date via video link between Brisbane and Newcastle.  All legal representatives appeared with Mr Williamson of counsel substituting for Mr Carney who had previously been legal representative for the paternal grandmother. The mother and maternal grandmother were late arriving for Court, they may have been held up by a traffic accident on the highway.  The paternal grandmother was also late as she had spent time at the school discussing issues with the school principal.

4. At the commencement of this morning’s hearing I was informed by Mr Hartley, counsel for the mother, that the mother indicated she was not accepting of any need for supervised time.  As I understand the position she steadfastly refused to come to Court.  She did not even enter the Court building, the instructions were given out on the street.  She then departed the Court precinct.  I am satisfied she well knew the trial was proceeding.  Counsel for the mother summarised his position by indicating that he was not withdrawing from the matter but he was obviously without instructions. 

5. Counsel for the father informed the Court that the paternal grandfather was willing to offer his services as a supervisor for any time to be spent by the mother with her children.  However, to protect himself against any unfounded allegations he wisely proposed that he would have with him someone from his Church to ensure supervision proceeded incident free.  The proposal of the father is for the mother to spend time with the children at all times as may be agreed between the parties in writing, but in the event of failure to agree each alternate Saturday from noon until 4.00 pm commencing on 21 March this year, and in the following week, Wednesday 25 March, from 3.30 pm until

   
   

   5.30 pm, and alternate Wednesdays thereafter.

6. Such times are to be spent at the O Park in G, or such other venue as the mother and paternal grandfather may agree.  It was proposed, and I accept the reasonableness of the proposal, that the mother’s time with the children is to be suspended for a period from 27 March to 10 April.   

7. It was accepted that the mother would be at liberty to put forward a suitable supervisor, subject to the approval by the Independent Children’s Lawyer of any such person nominated after hearing any submissions from the father as to the appropriateness of the appointment of such a person.  In the event either parent was dissatisfied with the decision of the Independent Children’s Lawyer in relation to the approval/non approval of a supervisor nominated by the mother the matter may be referred back to Court to be heard and determined by such Judge as may be available to hear such application in the Family Court Newcastle.

8. It was proposed that there be an order that either party may be at liberty to attend the children’s school functions, and the mother would be at liberty to attend to assist as a volunteer aide at the school so long as the school continued to approve such attendance.  There was to be a notation to the orders that the Independent Children’s Lawyer would undertake to explain to any supervisor appointed by these orders the duties and obligations attaching to the appointment of a supervisor.  That includes obviously the paternal grandfather.

9. Prior to the exercise of any such time with the children as provided by these orders the mother must confirm by mail to the father’s residential address, or text message to the father’s mobile phone not later than 48 hours prior to such time, her intention to spend supervised time with the children.  In the event such notice is not given the mother’s supervised time with the children is to be cancelled for that pending contact period. 

10. All parties are granted liberty to apply on seven days notice to all other parties for hearing via video link as to whether any variation is sought to these orders, such matter to be listed before myself or, in the event of my unavailability, such person as may be nominated by the Senior Resident Judge of this Court in Newcastle. 

11. In the event that the paternal grandfather is unable to find a suitable person to accompany him for a scheduled supervised time such time shall be cancelled but the father shall arrange make-up time for the mother as soon as reasonably practicable.

12. In the event either party makes a complaint that either child has been subjected to abuse of any kind that at the time of making such complaint to any person in authority the complainant is to provide to such person a copy of the order of this Court of Friday 13 March 2009 and Monday 16 March 2009, the reasons for judgment of Mullane J published 30 September 2008 and the reasons for the judgment of myself delivered Friday 13 March 2009.  In the event a complaint is made by telephone the complainant is to read to the person in authority a copy of the orders of Friday 13 March and Monday 16 March 2009, and thereafter forthwith forward a copy of Mullane J’s reasons and the reasons for judgment published 13 March 2009.

    ORDER DELIVERED

13. That will issue, I will substitute mine in the event that there is a notification to any person in authority, I will put my version of that in, and that should issue at the latest by the end of the week and that will be forwarded to you.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  16 March 2009