Game and Walker

[2007] FamCA 1046

FAMILY COURT OF AUSTRALIA

GAME & WALKER [2007] FamCA 1046

FAMILY LAW – CHILDREN – Interim hearing – No physical contact by father for several years – Resumption of physical contact not ordered at interim hearing – Contact by phone ordered

APPLICANT: MR GAME

RESPONDENT: MS WALKER

FILE NUMBER: BRF 11173 of 1999

DATE DELIVERED: 29 June 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 29 June 2007

REPRESENTATION

THE APPLICANT: Mr Game appears in person

SOLICITOR FOR THE RESPONDENT: Mr Porter, Porter Hulett Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Ms Batenburg, SBA Family Lawyers

ORDERS

IT IS ORDERED THAT

1. The matter be listed for a final hearing before the Honourable Justice Jordan on 29 & 30 November 2007.

1. A further Family Report be prepared by a Family Consultant nominated by the Manager, Child Dispute Services, in relation to any of the matters listed in section 60CC which are relevant to the matters before the Court, and that the Manager, Child Dispute Services in Brisbane, liaise with the Manager, Child Dispute Services in Melbourne, to arrange for the Family Report to include an interview with the Father, his current partner, and the children of that household.

1. For the purpose of completing the Family Report, the Family Consultant has permission to inspect the Court file and all documents.

1. The Family Consultant has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

1. The parties shall attend and ensure the children attend all necessary appointments for the preparation of the Family report.

1. The Father file and serve an affidavit of evidence-in-chief on or before 16 August 2007 and at the commencement of that affidavit, the Father set out the orders he seeks in relation to where the children are to live, where and when they spend time with each parent, how transport arrangements would be facilitated and any other specific issues relating to health, welfare, education and restraining orders.

1. The Father file and serve any other affidavits from any other witnesses he intends to rely upon on or before 16 August 2007.

1. The Mother file and serve an affidavit-in-reply on or before 21 September 2007 and at the commencement of that affidavit, the Mother set out the orders she seeks in relation to where the children are to live, where and when they spend time with each parent and specific issues orders, and any particulars of risk of abuse.

1. The Mother file and serve any other affidavits from any other witnesses she intends to rely upon on or before 21 September 2007.

1. Until further order, the Mother provide to her solicitor details of the child J’s current mobile telephone contact number and that the Father have communication by mobile telephone with the children between 4.00 – 4.30 pm each Sunday, and it is noted the Mother will ensure that the mobile telephone is charged and available to the children and that the Mother will leave the children alone during the periods of communication with the Father.

1. Each of the parties attend upon such medical practitioners or other nominated experts as requested by the Independent Children’s Lawyer.

1. Pursuant to s65DA(2) and s62B, 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 IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as Game & Walker

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF11173/1999

MR GAME

Applicant

And

MS WALKER

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. Ladies and gentlemen, what I have decided is that the issues identified by the parties and by the report writer in this case are complex.  They come from a background, as I have said earlier, of circumstances where the children have had very little, if any, contact with their father for seven or eight years. 

2. The father will contend at trial that that is of the mother's doing.  I gather the mother will contend at trial that the father moved interstate and has not appropriately and responsibly pursued his relationship with the children, and the determination of issues like that are matters that need to be addressed at the trial.  So without, at this stage, making any finding about the question of responsibility, I deal with the fact that the children have had very limited contact with their father. 

3. Another fact I deal with is that the objective evidence through the family report indicates that the child J is rude and resistant and showing very little interest in establishing a relationship with her father.  I gather the mother says that she has no interest.  Again, the question of whether that is, in fact, right, or whether J is just acting out to please her mother, or whether she is under the influence of her mother, or whether she does not appreciate the way her father speaks to her, or any one or all of those factors, is again a matter for determination at the final trial.  But there is a reality about her presentation that needs to be factored in now. 

4. E is 8 years of age.  He appeared to more positively embrace the prospect of a relationship with his father, although it is to be noted that it was the assessment of Ms B that the father exhibited some signs of being less interested in the relationship with E than he was in a relationship with J.  There could be explanations for how that impression was created, and again, those matters need to be explored.

5. The father is seeking orders for contact and thinks he should have unsupervised contact with his children and should not have to jump through any more hoops.  The mother is not supportive of any physical contact at this stage. 

6. The ill-will between the parents is self-evident.  Ms B has assessed each of the parents as being unable to properly manage the children's relationship with the father, and there were signs that even in a supervised regime there were matters of concern emerging in the exchanges between J and her father. 

7. Ms B said she thought some of the things the father was saying to J were inappropriate.  The father does not acknowledge that, and one can assume that whatever it was that Ms B thought was inappropriate would continue to be expressed by the father.  Unfortunately today, as nobody has the opportunity to ask Ms B questions about her concerns, this is really something of a terrible impasse.  If Ms B is right, or the father's concerns are right that the mother is totally hostile, unreasonably hostile, and likely to undermine the contact, then that makes contact problematic for the children, and J in particular. 

8. Of course, I am yet to hear the mother's case, and she might eventually endeavour to convince the Court that her reservations about contact between the children and the father are entirely justified, and her strong views are entirely justified.  That again is a matter for the final trial, but it seems to me on the evidence that is before me to date that I am left to conclude that there may well be problems for these children about unsupervised contact. 

9. What I had in mind, trying to address the complex issues in this case, is really moving to a full hearing of the matter as soon as possible so that the father can present all of his issues and concerns and the mother can present her issues and concerns.  I have in mind that that matter could be heard on 29 and 30 November.  So what we would be talking about would be three or four visits between now and then and whether they be supervised or otherwise.  As I say, on the material I am concerned about the prospect of the viability of any such contact.  I take the view that all of these issues, including contact, supervised or unsupervised, and change of residence can really only be properly heard and considered after the Court has had the opportunity to hear properly from each of the parties. 

10. I intend to make an order that will facilitate the preparation of a report in Victoria so that the father, his partner and the children can be interviewed and assessed. 

11. The father needs to understand that, to a large extent, the successful conduct of these proceedings is in his hands.  He is going to have to prepare some documents and file documents and provide the Independent Children's Lawyer and the mother's legal representative with copies of these documents.  His failure to do so will mean that the exercise will simply not get off the ground. 

12. What I propose to direct is that the husband file an affidavit of evidence-in-chief on or before 16 August, and I will direct further that, in the opening paragraphs of that affidavit, the father set out, with precision, all of the orders he seeks in relation to residence of the children, where they spend time, how transport arrangements would be facilitated, and any other specific issues relating to health, welfare, education and restraining orders, and that the mother file an affidavit in response. 

13. I am dispensing with the need to file an application, so the father does not have to worry about doing an application in proper form.  He can cover it in his affidavit and just address those matters at the beginning of his affidavit and then place before the Court the reasons and the evidence he proposes to rely upon.

14. Then I will direct that the wife file an affidavit in reply on or before 21 September 2007, and in that document at the commencement of that affidavit the mother set out, in the form of a response, the orders she seeks in relation to the residence, contact and specific issues. 

15. I will direct that a further family report be prepared and that the Manager, Child Dispute Services in Brisbane liaise with the Manager, Child Dispute Services in Melbourne to arrange for a family report, to include an interview with the father, his current partner, and the children of that household, and I should have indicated that, in addition to the father filing his affidavit on 16 August, that direction will be extended to include any other affidavits from any other witnesses the father intends to rely upon, and similarly, there will be that addition to the mother's direction.

16. At the present time, I am not satisfied that the value of three or four limited visits that may flow between now and November is not outweighed by the possible problems associated with imposing contact against the mother's apparent wishes and against the possible wishes of J, at least.  So, as I say, I propose not to make any further orders for contact until I have completed the hearing on 29 and 30 November, and I will direct that the matter stand adjourned to 29 November.

RECORDED   :   TRANSCRIBED

1. I will order that, in the event the mobile phone sent by the father is recovered, or in the event that the father provides a further mobile phone to the mother, the father have telephone contact with each of the children. 

RECORDED   :   TRANSCRIBED

1. I direct that the mother provide to her solicitors details of J’s current mobile phone contact number, and that the father have telephone contact.

RECORDED   :   TRANSCRIBED

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: