GARDENER & ROLLINGS

[2012] FamCA 1117

FAMILY COURT OF AUSTRALIA

GARDENER & ROLLINGS [2012] FamCA 1117

FAMILY LAW – CHILDREN – Interim Orders – Ex parte – Orders made suspending fathers time with the child

Family Law Act 1975 (Cth)

APPLICANT: Ms Gardener

RESPONDENT: Mr Rollings

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Mary Anne Ryan

FILE NUMBER: HBC 475 of 2012

DATE DELIVERED: 13 December 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 13 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hurd

SOLICITOR FOR THE APPLICANT: Blissenden Lawyers

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

SOLICITOR FOR THE INDEPENDENT

CHILDEN’S LAWYER

PWB Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms Mary Anne Ryan

Orders

1. The case management hearing be adjourned to 9.00am Tuesday 18 December 2012 before me by telephone to Brisbane.

   IT IS DIRECTED

2. The Independent Children’s Lawyer forward by post, facsimile or email a copy of the Children and Parent’s Issue Assessment dated 15 November 2012 as soon as is practical and inform the respondent father of the return date of 18 December 2012.

   IT IS ORDERED

3. UNTIL FURTHER ORDER the child B born … December 2002 (“the child”) live with the mother.

4. UNTIL FURTHER ORDER the father not approach, contact or otherwise communicate with the child.

5. The mother and father be restrained from discussing the contents of the report with the child.

6. 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 DIRECTED

7. A copy of the reaons for these orders be taken out and placed on the court file.

   IT IS CERTIFIED

8. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gardener & Rollings 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 HOBART

FILE NUMBER: HBC 475 of 2012

Ms Gardener

Applicant

And

Mr Rollings

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Ms Gardener (‘the mother’) and Mr Rollings (‘the father’) in relation to their daughter, B, who celebrates her ninth birthday next week.

   The mother commenced proceedings in this Court on 27 June 2012, seeking specific orders with regard to B, and the father filed a response on 20 August, essentially seeking different orders in respect of the time the child spends with the father.  This matter was sent to the Child Responsive Program and a report was obtained.

2. That report, dated 15 November 2012, was referred to me in chambers, and I was concerned about the matters contained in that report.  Of its own motion, this Court appointed an independent children’s lawyer on 22 November and listed the matter for case management before me today at 2.15.  Shortly before the matter came before me, the Court made an order to forward a copy of the Children’s and Parents’ Issues Assessment to be forwarded to the independent children’s lawyer so that she had some knowledge of what was going on.

3. When the matter was called today, there was no appearance by the father, but that may well be because he is in C Town and wasn’t aware of his need to attend.  A copy of the Children’s and Parent’s Issues Assessment was made available to the mother and to the mother’s lawyer.  The Independent Children’s Lawyer sought leave to make an oral application to suspend, for the time being, the time the child spent with the father, and to make an order that the child reside with the mother.  I intend to make that order.  The reason for that is because of the material contained in the Children’s and Parent’s Issues Assessment which I do not, intend to replicate chapter and verse.

4. It is concerning because of what is says about the interaction between the father and the child and its deep psychological impact on her.  The Family Reporter observes on page 5 the following:-

   …[The child] has always lived with her mother and had regular weekend time with her father from a very young age.  It is likely that his management of her distress and of her reactions to his lifestyle have not always been sensitively handled.  It is possible that [the child’s] fear and her emotional reserve with her father, has resulted from these years of experience.  [The child] states that she is not physically disciplined at this time; however, the fear and threats of this appear to be a constant for her.  It appears that [the child] is unable to express her views and feelings openly to her father due to his likely reactions, being either to dismiss these or tell her that she is young and has to do what he says.  When he becomes angry, she experiences him as being openly threatening in his behaviour to her.

5. It goes on to say at the bottom of page 6, and I quote:-

   Due to the fears expressed by [the child] in relation to her father’s likely reaction to her disclosures, it is recommended that the issues assessment is released in Court rather than directly to the parties, and that consideration is given to any short term protective measure that may be appropriate for [the child].  For example, the Court may consider whether contact time should be contingent upon [the father] having attended some counselling or for [the child] to have day contact only for a period of time; and whether the changeover should occur at the Children’s Contact Service, where it could be independently verified whether [the child] has been distressed during her time with her father.

6. I raised with the Independent Children’s Lawyer the question as to whether she should contact a family consultant to ascertain her views about the best way to interact with this child, and I understand she proposes to do so.  I intend to put in place very short form orders to give the father an opportunity to be heard.  There is of course a balance between the need to protect a child and procedural fairness.  It always seems to me that the need to protect the child must circumvent any matters of procedural fairness, but once that has been circumvented; the father is entitled to be heard and make submissions in relation to this.

7. Accordingly, I adjourn this case management hearing until 9.00 am, on Tuesday 18 December 2012, at Brisbane, and I note that the time is Tasmanian time, not Brisbane time.  I direct that the Independent Children’s Lawyer forward by post, facsimile or email to inform the father of the return date with a copy of the Children and Parents Issues Assessment as soon as is practicable.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 13 December 2012.

Associate:     

Date:              13 December 2012