Grant and Kennox

[2009] FamCA 1153

FAMILY COURT OF AUSTRALIA

GRANT & KENNOX [2009] FamCA 1153

FAMILY LAW – CHILDREN – Interim time, child does not know father

Family Law Act 1975 (Cth)

APPLICANT: Mr Grant

RESPONDENT: Ms Kennox

INDEPENDENT CHILDREN’S LAWYER: Ms Fox

FILE NUMBER: BRC 5312 of 2008

DATE DELIVERED: 13 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 13 November 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Cassandra Pullos Lawyers

SOLICITOR FOR THE RESPONDENT: Walker Pender Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Fox

Barbara Fox Solicitors

Orders

1. The matter be adjourned to the Magellan Directions List before Justice Murphy at 10.00am on 21 May 2010 in the Brisbane Registry of the Family Court of Australia.

2. Pursuant to Section 65L of the Family Law Act 1975:

   a.a Family Consultant shall give any party to these parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders, and it is requested that, if possible, Ms O continue as Family Consultant in this matter;

   b.a report be prepared at the conclusion of such process, and the report shall supplement the Family Report previously provided by Ms O and such report to be available for the hearing on 21 May 2010.

3. The parties do and such things, sign all such documents, and pay all such fees as might be necessary for them to comply with such reasonable requests made in writing by the Independent Children's Lawyer for random screenings designed to detect the presence of any illicit drug or other substance.

IT IS NOTED that publication of this judgment under the pseudonym Grant & Kennox is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5312 of 2008

MR GRANT

Applicant

And

MS KENNOX

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. In this matter, the parents of two young children, currently aged about four and three, are in dispute about parenting arrangements. An independent report writer, Ms O, has had the opportunity to speak to both parents and to make observations of them with the children. 

2. The report was commissioned within the context of this matter being included in this court’s Magellan list.  The reason for its inclusion in that list are allegations that the father has sexually abused C and the mother’s child, S – a child from a previous relationship. 

3. Plainly enough, allegations of sexual impropriety are very serious and central to the issue of determining the best interests of children.

4. However, Ms O also identifies a plethora of other issues that a court would need to take into account in determining the best interests of the children.  The issues identified by Ms O find clear reflection in the Objects, Principles, and Considerations mandated by the Act to be considered by the court in arriving at a decision about the best interests of these two young children. 

5. Amidst that plethora of allegations, counter-allegations, assertions, and issues is the fact that these young children have not spent any time with their father for a considerable period of time – it seems since about January 2008.  That position also arises in the midst of a series of very serious allegations in respect of family violence and the consequent ramifications of such violence asserted by the mother. 

6. Those issues also occur in the context of what are, as yet, assertions with respect to the use of illicit drugs by both parents.  That issue is addressed by my making orders for random drug testing at the request of the independent children’s lawyer as this matter progresses. 

7. Ms O unsurprisingly, as it seems to me, suggests caution in and about the father spending time with the children.  It seems to me appropriate that that caution be exercised. 

8. Having said that, it is a significant matter, in the context of the Objects and Principles enunciated in the Family Law Act that these young children have not spent any time with their father for, it seems, almost two years. This has had the effect, among others, that the youngest child, K, does not know his father.

9. Within that context it is also significant to note that Ms O includes in her evaluation these comments:

   To evaluate whether or not the level of risk is acceptable, at least in the interim, for the children to spend time with their father the children’s relationship with both parents needs to be considered as well as the child’s presentation at court.  [C’s] presentation in interview clearly shows she is fearful of her father.  What is, however, unclear is the cause of her fear related to either her father’s sexual abuse of her as a toddler and/or as a reaction to her mother’s and half-sister’s portrayal of her father as a dangerous and mean man.

   32.  [C’s] mixed reactions about her father, her inability to recall any adverse aspects to her last contact with her father, and her understanding of her mother’s intensely adverse feelings towards [the father] are together sufficient to suggest [C’s] fear is founded to some extent on her mother’s experience of [the father] rather than her own.  On the other hand, however, it could argued that her strong withdrawal from any visual or verbal acknowledgement of [the father] during observation and her steadfast refusal to see her father are indications that she does have some type of adverse personal experience of [the father].  Likewise her lack of recall or disclosure about the time at the park may have been because she did not feel relaxed in her interview.

10. The mother’s position today is that there should be no time between the children and their father at all. 

11. Whilst caution is, in my view, understandable in the complex circumstances of this case the process envisaged by section 65L of the Act has a number of distinct advantages.

12. First, it provides an opportunity for these young children to experience their father in an environment monitored by an independent expert.  A consequence of that is that the environment in which they spend time with their father is completely safe. 

13. A further consequence of the process is that the time between children and the father can be monitored and observed, and form the basis of important data available to the court in the future for assessing the best interests of these two children. That is particularly important in light of the observations already made by Ms O in the two paragraphs which I have earlier quoted. 

14. It seems to me entirely appropriate that an order be made pursuant to section 65L of the Act and I so order.

15. Equally plain in Ms O’s report are suggestions that each of the parties would significantly benefit, both personally and in their interrelationship and parenting, if they each respectively undertook counselling or courses of one sort or another. 

16. It is in my view somewhat counterintuitive to order people to undertake courses which somebody considers to be for their benefit.  It is up to each of the parties to take on board, or not take on board, as they might choose, what an independent expert has said about the benefits likely to accrue to each of them and the benefits likely to accrue to their respective parenting capacities. Each is likely to be a significant issue at the trial.

17. If they avail themselves of the course, or courses, it is to be hoped that they will receive significant benefits from them.  If they choose not to avail themselves of any such courses between now and the trial then, undoubtedly, in a case where the capacity of parents to parent (within the meaning of section 60CC) is a live issue, their failure or refusal to undertake such a course would, I suspect, be a matter of considerable interest to a trial court. 

18. For those reasons I do not propose to order the parties to undergo any of the courses or counselling recommended or suggested by Ms O. 

19. It is axiomatic that the process envisaged by section 65L should take place over a period of time. That is particularly true in circumstances where young children have not seen one parent for a considerable period of time, as is the case here. It is also particularly important in circumstances where an expert has identified the sorts of matters to which the quotations earlier referred to make reference and other matters of a similar nature referred to more generally in the report of Ms O.

20. Accordingly I propose to make an order pursuant to section 65L and to bring this matter back before me in the Magellan directions list on 21 May 2010.

21. I will request that Ms O prepare a report consequent upon the section 65L order made by me, to be available to the court on that further directions hearing.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date:  1 December 2009