GWEN & TAYLOR

[2011] FamCA 124

FAMILY COURT OF AUSTRALIA

GWEN & TAYLOR [2011] FamCA 124

FAMILY LAW – CHILDREN – Interim time with child

Family Law Act 1975 (Cth)

Russell & Close [1993] FamCA 62

APPLICANT: Mr Gwen

RESPONDENT: Ms Taylor

INDEPENDENT CHILDREN’S LAWYER: Mr Kingston

FILE NUMBER: BRC 9895 of 2010

DATE DELIVERED: 14 February 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 14 February 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr D Lewis of Legal Aid Queensland

SOLICITOR FOR THE RESPONDENT: Ms Gallagher of Gallagher Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kingston of Norman & Kingston

Orders

IT IS ORDERED THAT

1. The hearing of the Application by the father for interim parenting orders shall be set down for hearing before the Principal Registrar at 10.00am on 22 March 2011 in the Brisbane Registry of the Family Court of Australia.

   AND IT IS NOTED THAT at the hearing of the application for interim time, the father will seek, in the alternative, an order for supervised time for one hour per week, and the mother in response to the father’s application will seek an order that there be no time on an interim basis.

2. The mother shall file and serve any additional Affidavit material directly relevant to the interim application by 4.00pm on 4 March 2011.

3. The matter be further adjourned to the Magellan Registrar at a time and on a date to be fixed by the Principal Registrar at the hearing on 22 March 2011 for the making of directions and to progress the matter to final hearing and that unless otherwise ordered by the Registrar, such hearing shall be conducted by telephone.

4. The interviews on 16 March 2011 for the preparation of a Family Report be vacated.

AND IT IS FURTHER ORDERED THAT

1. In the event that the parties reach agreement with respect to interim time, the parties and the Independent Children's Lawyer shall be at liberty to forward minutes of consent, by way of joint communication forwarded to the Associate to Justice Murphy by email to … attaching a copy of the minutes of consent, and if considered appropriate, such orders shall be made by consent in chambers.

2. The parties do all such things, sign all such documents and attend all such consultations as might be necessary so as to permit an independent single expert psychiatrist nominated by the Independent Children's Lawyer to prepare a report in respect of each of the parties to this relationship.

3. Pursuant to Section 62G of the Family Law Act 1975, a report be prepared for the Court by a psychologist appointed by the Independent Children's Lawyer.

   a.For the purpose of completing the Family Report the report writer has permission to inspect the Court file and all documents related to this matter.

   b.The report writer 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.

   c.The parties shall do all such things, sign all such documents, attend all such appointments and ensure the child attend all such appointments as are reasonably required and necessary for the preparation of the Family Report.

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

   a.the parties shall do all such things, sign all such documents, attend all such appointments and ensure the child attend all such appointments as are reasonably necessary for such supervision;

   b.the Family Consultant shall prepare a report, in respect of the supervision, and contact with the parties and child and it is respectfully requested that Ms D, Family Consultant, have available to Principal Registrar Filippello a Report in respect of the s 65L supervision conducted by her, not later than 4.00pm on 8 March 2011.

5. To the extent that the exception provided for in Section 121(9)(g) of the Family Law Act1975 or the other provisions of that subsection do not otherwise authorise same, the Independent Children's Lawyer shall have leave to publish all such documents and information relevant to these proceedings as the Independent Children's Lawyer might consider appropriate, including, without limiting the generality thereof, the child and Parents Issues Assessment and copies of any documents produced pursuant to subpoenae in these proceedings.

6. The Independent Children’s Lawyer is granted leave to issue subpoenae to:

   a.Queensland Police Service;

   b.Queensland Department of Communities (Child Safety Services);

   c.Queensland Health or other private health facilities as the Independent Children's Lawyer may be advised that the child or the parents have attended;

   d.Education Queensland or other private educational facilities as the Independent Children's Lawyer may be advised that the child has attended.

   AND unless otherwise ordered, leave is granted to all parties to inspect and to the Independent Children's Lawyer alone to copy documents produced pursuant to subpoenae, save any document in respect of which objection to either inspection or copying is made, in which case an application is to be brought before Justice Murphy.

7. UNTIL FURTHER ORDER, the father submit to a random drug screen test by urinalysis and in relation to such tests:

   a.Each test is to be performed within 24 hours of a request made by the Independent Children's Lawyer;

   b.That the results of the test are provided to the Independent Children's Lawyer and the other parties to the proceedings within 48 hours of the results being received by the father;

   c.In the event any substances are detected within the results, that the pathology lab conducting the test provide confirmation of the results in accordance with Australian Standard AS/NZS 4308:2008: Procedures for Specimen Collection and the Detection and Quantification of Drugs of Abuse in Urine;

   d.The collection of the sample and the handling of the sample complies with the chain of custody requirements as to temperature and handling as provided for in the above Australian Standard;

   e.That such tests be performed not more than once in any 28 day period.

IT IS NOTED THAT:
The Independent Children's Lawyer has arranged for the parties to attend interviews with Professor V on 27 and 28 July 2011 and that interviews with Mr W be arranged as soon as possible after the release of the Report by Professor V to each of the parties.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9895 of 2010

Mr Gwen

Applicant

And

Ms Taylor

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. In this case one of the parties seeks in respect of a yet very young child that there be no time spent between the father and that child. The Independent Children’s Lawyer foreshadows that issues similar to those referred to in the decision of the Full Court in Russell & Close may be a live issue at the future trial of this matter. 

2. I am persuaded that firstly a section 62G report ought be prepared by a psychologist, namely Mr W, who might address, subsequent to the report mooted from a single expert psychiatrist, Professor V, psychometric testing among other things, with a view to addressing specifically the issue of what might conveniently be called the mother’s anxiety about time, between the father and J (“the child”) firstly, and secondly any behaviours said to be exhibited by the child in the period that he has been in the sole primary care of the mother and spent very little, if any, time with the father.

3. Notwithstanding the significantly limited resources of the Court’s Child Dispute Services to provide supervision pursuant to section 65L of the Act, I am nevertheless persuaded in this particular case that the orders sought at paragraph 5 of the orders proposed by the Independent Children’s Lawyer should be made.

4. Ms D, who is an experienced family consultant attached to the child dispute services of this court will shortly have seen the child and the parties in a section 65L context on two occasions.

5. It seems to me from what is presently known of this particular case and noting again that the child is yet very young, that a trial court might be significantly assisted by having input from a consultant psychiatrist as mooted by the orders and proposed by the Independent Children’s Lawyer, and agreed to by each of the parties; from the psychologist, as earlier referred to, and, in addition, observations from Ms D emanating from the section 65L process already conducted and which, in my view, is appropriate to continue to be conducted.

6. I will, then, make orders in accordance with those proposed by the independent children’s lawyer. 

7. I will order that the matter be adjourned to the Magellan Registrar for further directions at a date and time to be fixed by Principal Registrar Filippello on 22 March 2011, and will give leave to all of the parties to appear at that directions hearing before the Magellan Registrar by telephone. 

8. I will otherwise order in accordance with paragraphs 2 through 5 of the Application.  I will delete paragraph 6(a) on the basis that the proposed orders are too generally expressed and, in any event, it seems to me that 6(b) deals with all such issues as might be necessary.

9. I will otherwise make orders in accordance with paragraph 6, 7, 8 and 9. 

10. I will, additionally, formally make the order that I indicated earlier for the interim hearing to occur on 22 March and for the filing and service of documents as earlier referred to. 

11. I will include as a notation to the orders that the Independent Children’s Lawyer has arranged for the parties to attend interviews with Professor V on 27 and 28 July 2011 and it is hoped that interviews with Mr W will be arranged as soon as possible after the release of Professor V’s report to each of the parties.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered 14 February 2011.

Associate: 

Date:  3 March 2011