GRILLO & ARTHUR

[2014] FamCA 634

FAMILY COURT OF AUSTRALIA

GRILLO & ARTHUR [2014] FamCA 634

FAMILY LAW – CHILDREN – Interim – where trial previously adjourned at request of parties to accommodate a course of therapy aimed at re-unification as per consent orders entered into on first day of trial – difficulty in relation to availability of appropriate professional to undertake the task – where a notation in the orders provided the mother no longer believed the father posed an unacceptable risk of sexual abuse in respect to the child – where mother now raises question of duress at the time of entering into consent orders.

Evidence Act 1995 (Cth) s 131

APPLICANT: Mr Grillo

RESPONDENT: Ms Arthur

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 4152 of 2012

DATE DELIVERED: 7 August 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 7 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bowler

SOLICITOR FOR THE APPLICANT: D’Angelo Kavanagh

COUNSEL FOR THE RESPONDENT: Litigant in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. The matter is adjourned for further consideration to 9.15 am on 11 August 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grillo & Arthur 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 ADELAIDE

FILE NUMBER: ADC 415 of 2012

Mr Grillo

Applicant

And

Ms Arthur

Respondent

REASONS FOR JUDGMENT

1. The matter of Grillo & Arthur comes before the Court as a result of an Application in a Case filed by the father, in effect seeking that the Court give further consideration to orders made 1 April 2014.  The short summary is that for different reasons, the orders have not been either the subject of compliance or substantial compliance, and the matter is made more acute by the fact that this matter has been listed for further hearing as a trial commencing 3 November 2014. 

2. There are concerns properly raised by Mr Hemsley on behalf of the Independent Children’s Lawyer that if I simply accede to the request of Mr Bowler, which is to insert a different health professional, as opposed to Ms B or Ms C, that even with the best of intentions, the full compliance with the order may not be able to be facilitated prior to the trial.  Mr Bowler’s position is that he is unconcerned by that, and his client expresses some high degree of frustration that nothing is happening.  Ms Arthur is not resistive to a change in the identity of the single expert, but rather seeks to ensure that the single expert is firstly a person of appropriate qualification, and then if possible is able to accommodate, both physically and geographically, the obligations that the order are likely to create. 

3. Without there being any criticism of any of the parties, it seems to me that there needs to be some further exploration and investigation as to the identity of a person who is likely to be able to get on with the job sooner rather than later, and if not commit to a completion of the matters set out in the order of 1 April 2014, then at least that person’s attendance would enable substantial compliance to be undertaken.  If that is not the case and it is impossible to find a person at this relatively late date in the proceedings to undertake those obligations, then the default position, if that is a proper description, is the father’s application, that I hear and determine whether there should be simply a resumption of supervised time between the father and the child at the D Town Contact Service. 

4. Ancillary to all of that, of course, is the need for that service to be brought on board.  That can only happen once the parties make the appropriate application and referral and gain approval.  The process has a time lag and it is likely then, in any event, that that order is an order that is going to be made by me.  It seems sensible then to put the matter off for a few days.  I am proposing to bring it back on Monday 11 August 2014 at 9.15 am and by then counsel and Ms Arthur will have either agreed on the identity of a person to fulfil the obligation under the order; or in the alternative, that I will be presented with some options and that it will have to be my decision as to who the health professional is that undertakes that role, assuming there is someone that is able to do it, based upon their availability, accessibility and preparedness. 

5. Some other issues have arisen.  Mr Hemsley also raises, by way of oral application, that there should be an injunction restraining the parties, but understandably, and properly accepted by the mother, that it is directed towards her that there should be an injunction that would restrain the extent to which she is permitted or able to discuss the proceedings generally, but in particular the process that the order might dictate and determine.  The mother understands it, and that matter will be also considered on the next occasion. 

6. But of course, if it turns out that the order of 1 April 2014 or its intended incantation with a different health professional is simply not going to happen, then obviously there may not be a need for that order, and there will be a different process presumably put in place between now and 3 November 2014.  A further matter has also arisen in respect of the order, but in particular by way of focus upon the notation in the order;  namely, where the mother acknowledges that there is no risk of sexual or other abuse in the future by the father in respect of the child, E. 

7. That raises an issue in terms of the potential for conflict involving counsel and Ms Arthur, principally counsel, in terms of the discussions that by necessity occurred leading up to a resolution on 1 April and the orders that subsequently flowed from that, but in particular the notation.  I am uncertain yet from Ms Arthur what her position is.  It seemed at first that she was attempting to suggest that the notation was a notation made in good faith at the time, but that obviously it cannot possibly rule future or other issues that might occur. 

8. Then at the end of the matters that she raises with me, she used the word “duress” and there was some obvious concern that might arise because of that. What I do not want to happen is if this matter reaches a hearing on 3 November 2014, that all other things being equal, this becomes a matter of dispute and counsel who appear find themselves with the potential of being witnesses, based upon exceptions to section 131 of the Evidence Act 1995 (Cth). I do not take that matter any further.

9. I did not ask Ms Arthur to provide a concluded position to it, because she indicates that she is in the process of obtaining legal advice, if not representation, that she is going to give the matter consideration between now and Monday, but it may be and I put counsel on notice, and the mother on notice that on Monday I will revisit that matter, because it would be untenable for this matter to have reached trial twice with all other matters being resolved, but the proceedings interrupted by an issue arising as to the manner in which the orders of 1 April 2014, but in particular the notation , came about.  That is, however, a matter for counsel to consider. 

10. So for those reasons, the only order that I make is as follows.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 7 August 2014.

Associate: 

Date:  8 August 2014