Gomez and Gomez

[2007] FamCA 240

FAMILY COURT OF AUSTRALIA

Gomez & Gomez [2007] FamCA 240

FAMILY LAW - CHILDREN – Person defined as having a “disability” – Appointment of case guardian - Interim parenting orders

Family Law Act 1975  (Cth)

APPLICANT: Mrs Gomez

RESPONDENT: Mr Gomez

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

FILE NUMBER: NCF 587 of 2006

DATE DELIVERED: 25 January 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 22, 23, 24 & 25 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Graham

SOLICITOR FOR THE APPLICANT: Mason, Solicitors

COUNSEL FOR THE RESPONDENT: Mr P Hartley

SOLICITOR FOR THE RESPONDENT: Rod Powe & Co., Lawyers

INDEPENDENT CHILDREN’S LAWYER: Mr G Levick

Orders

1. That the That until further order the mother ensure the child, a daughter, born in April 2001 spend periods of time with the father supervised by or in the presence of a family consultant appointed by the Director of Family Dispute Services, Newcastle Registry for no more than one hour commencing at 4.00pm, 9 February 2007 and thereafter at three weekly intervals.

2. That until further order the mother is restrained from the following:

   (a)taking the child to a medical practitioner or other person in the health profession to be examined or discuss any allegation of possible child abuse by the father;

   (b)discussing with the child any allegation of her having been or possibly having been abused by the father, or encouraging the child to take part in any such discussion or to make any comment on that subject matter.

3. That leave is granted to the legal representatives for the mother to withdraw from further representation of her at such time as they consider appropriate.

4. That the trial is stood over part-heard for mention by telelink at

   
   9.00am on Tuesday, 13 February 2007

   for the following purposes:

   (a)possible appointment of Ms D as the case guardian for the mother;

   (b)being informed by a representative of the Legal Aid Commission of New South Wales (Sydney office) of the new legal representatives for the mother or her future legal representation;

   (c)directions for the resumption of the part-heard trial including assessment of further hearing time required and venue.

NOTATIONS:

A.The mother is a “person with a disability” in accordance with paragraph (b) of the Dictionary, Family Law Rules 2004, namely that the mother:

“(b)is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.”

B.       Counsel for the mother has informed the Court:

(a)There is a pending application with the Legal Aid Commission of New South Wales regarding continuation of the grant of legal aid for the mother.

(b)The Legal Aid Commission of New South Wales will be requested to consider the fees and expenses which will be sought by Ms D for the purpose of her consenting to the appointment as case guardian for the mother.

(c)The Legal Aid Commission of New South Wales will also be requested to consider ordering and obtaining a transcript of the trial to date for the purposes of it being furnished to the new legal representatives for the mother.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

MRS GOMEZ

Applicant

And

MR GOMEZ

Respondent

REASONS FOR JUDGMENT

Evidence of Dr V

1. In these proceedings, I accept the evidence given by Dr V regarding the mother being a person who, in all likelihood, cannot give adequate instructions in relation to the issues of alleged child abuse by the father.

2. Accordingly, I find that the mother is a person with a disability in accordance with paragraph (b) of the definition in the dictionary to the Family Law Rules.

3. I grant leave to the legal representatives for the mother to withdraw from further representation of her at such time as they consider appropriate.

4. I stand over the proceedings part-heard for mention by telelink at 9.00 am on Tuesday, 13 February 2007 for the purposes of the following:

   (a)possible appointment of Ms D as the case guardian for the mother;

   (b)being informed by a representative of the Legal Aid Commission of New South Wales (Sydney office) of a new lawyer for the mother regarding her future legal representation;

   (c)redirections for the resumption of the hearing part-heard, including an assessment of further time required and the venue.

5. I note that counsel for the mother has informed me of the following:

   (a)that there is a pending application with the Legal Aid Commission of New South Wales (Sydney office) regarding continuation of the grant of legal aid for the mother;

   (b)that the Legal Aid Commission of New South Wales will be requested to consider the fees and expenses sought by Ms D for the purpose of her consenting to appointment as case guardian for the mother;

   (c)that the Legal Aid Commission of New South Wales will also be requested to consider ordering and obtaining a transcript of the trial to date for the purposes of it being furnished to the new lawyers for the mother.

Interim parenting orders

1. Earlier today, I made orders in relation to adjourning the proceedings part-heard.

2. Subsequently, an application has been made on behalf of the father for interim parenting orders, that until further order, the child live with him.  No order was sought in relation to periods of time or communication with the mother should such an order be sought.

3. The grounds upon which such an application was made were outlined by the father's counsel, all of which in my view, were cogent matters for consideration.

4. I do not propose to make the orders as sought.

5. Briefly, my reasons are that I am required to balance the risk of child being alienated or coached in a way which might influence adversely the relationship between the child and the father.  This is due to the mother's strong belief that the child has been sexually abused by the father.  I have also considered the lack of any expert evidence of the effect on the child emotionally of ceasing to live with the mother and immediately commence living with the father with whom the child has spent little and irregular periods of time in the past.

6. The child has lived with the mother throughout her life.

7. When the parties separated, the mother was pregnant with the child.  The only daily parental care that the child has experienced has been with the mother.

8. There is no suggestion on the evidence before me that the child's physical needs are not being met.

9. There is obviously an issue in terms of emotional needs and that is a matter of grave concern as to whether or not the mother may be contaminating the relationship between the child and her father.  Nonetheless, the allegations made by the mother are very serious and no findings have been made in that regard.

10. To make an order that the child live with the father now would in effect be to pre-empt the findings that I must ultimately make in circumstances where the father has yet to be cross-examined.

11. Indeed, I have yet to hear from the child expert, Dr R although I do have his report and it may also be necessary to have further evidence adduced from the mother's treating psychiatrist, Dr V.

12. Consequently, whilst I consider the application is one which has substance, in terms of the best interests of the child and acknowledging the situation appears to be far from ideal from the child's viewpoint so far as relationship with the father and the mother's attitude towards him, nonetheless, I have concluded that the child's best interests are met by continuing to live with the mother.

13. The current interim parenting orders made on 19 September 2006 in the Federal Magistrates Court provide, amongst other things, for the child to spend periods of time with the father on a three-weekly basis, supervised by the Manager Child Dispute Services in the Newcastle Registry of the Family Court of Australia.  The last occasion this occurred was in December 2006.

14. There is no interim application before me to set aside, vary or suspend that order.

15. Consequently, it is a current order and there is no need to make another order in those circumstances.  It only is a question of what will be the next available time for that order to be carried out.

16. I was informed by counsel for the independent children's lawyer that the next available time is 3.00pm on 9 February 2007.

17. The information provided to me by counsel for the mother, appearing now as amicus curiae, is that the child normally attends school which does not conclude until 3.30pm.  Obviously, it is not in the child's interests to have her school day disrupted, other than for urgent reasons.

18. I was further informed by counsel that the travel time is approximately 15 minutes to the Newcastle Registry from the child's school.

19. I will make an order which provides for supervised time to be spent by the father with the child in accordance with Order 9(d) made on 19 September 2006 in the Federal Magistrates Court.

20. Counsel for the father quite properly interrupted me to point out the full terms of Order 9(d).  I will make an order to ensure that it continues until further order on appropriate terms.

21. It is not practical or realistic to expect that the period should commence at 3.30 pm on a particular Friday or other school day.  I will make allowance for the travelling time and perhaps some unforseen delay in traffic or, obtaining an appropriate parking space if the mother travels by motor vehicle.  Consequently, I will make an order for the commencement of the supervised period of time to be at 4.00 pm on the relevant dates.

22. Former counsel for the mother quite appropriately submitted that there was no prejudice in effect to the mother if the interim injunctions as sought by the independent children's lawyer were granted.  Indeed, orders in those terms would not only be in the best interests of the child for obvious reasons, but may also provide a form of protection for the mother, as well as the father, against allegations or counter allegations that might be made by each of them.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Dated:  7 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GOMEZ & GOMEZ