Hardy and Lamar & Anor

[2020] FamCA 1118

FAMILY COURT OF AUSTRALIA

HARDY & LAMAR AND ANOR [2020] FamCA 1118

FAMILY LAW – CHILDREN – Application by maternal grandmother to spend time with and communicate with the grandchildren – Application opposed by the mother – Application supported by the father – Interim Orders made that maternal grandmother spend supervised time with and communicate with the grandchildren when they are in the father’s care .

FAMILY LAW – PROCEDUAL ORDERS – matter listed for final hearing on a date and time to be advised – Orders for appointment of a single expert – Family Report ordered.

Family Law Act 1975 (Cth)

APPLICANT: Ms Hardy

FIRST RESPONDENT: Ms Lamar

SECOND RESPONDENT: Mr Barton

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission

FILE NUMBER: HBC 557 of 2020

DATE DELIVERED: 2 December 2020

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 2 December 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE FIRST RESPONDENT: Ms Higgs

SOLICITOR FOR THE FIRST

RESPONDENT:

COUNSEL FOR THE SECOND RESPONDENT: Ms Higgs

SOLICITOR FOR THE SECOND

RESPONDENT:

Dobson Mitchell & Allport

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Rita Van Meer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Commission of Tasmania

Orders

IT IS DIRECTED

1. These proceedings be placed into the docket of Chief Justice Alstergren.

2. These proceedings be listed for hearing before Chief Justice Alstergren at a time determined by the Chief Justice or other Judicial Officer of the Family Court.

3. IT IS NOTED that an undertaking was given by Mr Barton (‘the father’), in court today, to supervise any time that Ms Hardy (‘the maternal grandmother’) spends or communicates with the children X born … 2008, Z born … 2008 and Y born … 2009 (‘the children’).

IT IS ORDERED UNTIL FURTHER ORDER

1. BY CONSENT the mother, the father and the maternal grandmother be restrained from discussing these proceedings with the children or in the presence or hearing of the children or in any way informing them of these proceedings other than is necessary for them to attend assessments and the like.

2. BY CONSENT the parties be restrained from belittling, demeaning, abusing or in any way undermining the other parent or party in the presence or hearing of the children.

3. BY DETERMINATION the children may spend time with the maternal grandmother, supervised by the father, during the time the children spend with the father over the Christmas 2020/New Year 2021 and mid-term school holiday periods 2021 as agreed between the father and maternal grandmother.

4. The children may communicate with the maternal grandmother at times they are with the father by telephone, once per fortnight, provided at all times such telephone calls are supervised by the father.

5. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.

6. Leave is given for the mother, at her own expense, to obtain an expert report from Psychiatrist, Dr B as to the impact on the mother’s mental health and her ability to parent the children including the broader aspects as set out in Re: Andrew (1996) FLC 92-692 provided that such report is obtained at the cost of the mother and is available by the end of March 2021.

7. The mother and those that are advising such expert shall provide copies of all written communications and details of any oral communications between the mother and Dr B to the other party and the Independent Children’s Lawyer in accordance with the Family Law Rules 2004 (Cth).

8. A report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services, noting such interviews are to take place in April 2021.

9. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents.

10. The Family Consultant 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.

11. The parties shall attend and ensure the children attend all necessary appointments for the preparation of the Family Report.

IT IS DIRECTED

1. A Transcript of the evidence of the undertaking of Mr Barton, referred to in order 3 above, be taken out and placed on the Court file.

2. The father file a Notice of Address for Service within twenty one (21) days of the date of this Order.

3. Each of the parties file their trial affidavits on or before 30 April 2021

IT IS FURTHER ORDERED

18.The interests, in these proceedings, of the children X born … 2008, Z born … 2008 and Y born … 2009 be independently represented by a lawyer and it is requested that Legal Aid Commission Tasmania arrange Ms Rita Van Meer as Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Hobart.

1. Forthwith upon appointment by the said Legal Aid Commission of Tasmania or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

2. The parties are not required to provide any previously filed documentation to the Independent Children’s Lawyer as she already has such documentation.

3. The parties and the Independent Children’s Lawyer be restrained from filing any further material after 30 April 2021 without leave of the Court.

4. The parties prepare and file three (3) business days before the commencement of hearing a case outline, in hard copy and electronic form, setting out:-

   (a)a chronology;

   (b)a list of documents upon which they rely;

   (c)the precise orders they seek; and

   (d)a dot point summary of argument.

5. The matter be listed before Chief Justice Alstergren, for mention, on or about 30 April 2021 for any further directions for hearing.

6. Leave be given to the parties to have the matter re-listed before Chief Justice Alstergren on the giving of seven (7) days-notice to the other party and the court.

7. Leave be given to the parties and the Independent Children’s Lawyer to have access and provide to Dr B such material that currently exists in relation to preceding proceedings in the Federal Circuit Court HBC814/2015 between the mother and father, including the Family Report of Ms F dated 30 October 2018 and any reports, affidavits and orders in relation to those preceding proceedings together with any documents in relation to these current proceedings.

IT IS FURTHER DIRECTED

1. A copy of the Ex Tempore Reasons delivered 2 December 2020 be taken out and placed on the Court file.

IT IS REQUESTED

1. The Independent Children’s Lawyer conduct an Independent Children’s Lawyer’s conference at a time suitable to her and to the parties prior to the matter proceedings to hearing.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hardy & Lamar and Barton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 557 of 2020

Ms Hardy

Applicant

And

Ms Lamar

First respondent

And

Mr Barton
Second respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are proceedings commenced by Ms Hardy who is the maternal grandmother (‘the maternal grandmother’) of X, born in 2008, Z, born in 2009, and Y, born in 2013. 

2. The respondents to the proceedings are Ms Lamar (‘the mother’) and Mr Barton (‘the father’).  The father and mother had been engaged in proceedings in the Federal Circuit Court, which were resolved by orders made 20 June 2019 (proceedings HBC 814/2015).  In those proceedings, a family report was obtained and dated 30 October 2018.  In these proceedings, the maternal grandmother was initially represented, but now represents herself.  The father represents himself and the mother is represented by Dobson Mitchell Allport.

3. The issue which this matter deals with is what time, if any, should the maternal grandmother seek time, or to spend time, with the children.  There has been a history of the children spending time with the maternal grandmother, although the relationship between the mother and the maternal grandmother has failed in recent years. 

4. The mother has filed an affidavit in which she asserts that the maternal grandmother has herself, and/or through members of her family, abused the mother and consequently that would lead to abuse of the subject children. 

5. The mother contends that any time that the children spend with the maternal grandmother would not only put the children at substantial risk of abuse, but will also cause her psychological or psychiatric harm, such that she would struggle to parent the children. 

6. I have read all of the affidavits of the parties, and I have read the Family Report prepared by Ms F in and dated, October 2018, about two years ago.  I am also conscious of the fragile health aspects, particularly of the two older boys. 

7. In this case, in June of 2019 the father and mother entered into final parenting consent orders, which provided that the parents have equal shared responsibility for the children, and that they live in a week about the arrangement with each of the father and the mother. 

8. It made provision for the schooling of the children, and provided that the children can travel overseas or interstate and provided a process in respect of that.  At that time, Ms Van Meer was the Independent Childrens’ Lawyer and orders were made that her appointment would remain in place for a period of time. 

9. These proceedings involve the maternal grandmother seeking to spend time with the children whilst they are in the care of their father.  From what was said today, it was declared that the father consents to that course, but that it is wholly opposed by the mother. 

10. The question that I had to deal with was weighing the balance of risk in relation to the children’s’ ongoing relationship with the maternal grandmother.  The father today gave an undertaking to the Court, and orders were made that, the children spend time with the maternal grandmother and communicate with the maternal grandmother on a fortnightly basis, effectively he would supervise that.

11. I also made orders that the father would supervise that time, and he was aware that if he breached that undertaking, the likely outcome for him was prison. 

12. Further, I made orders today, essentially by consent that all parties were restrained from discussing these proceedings with or in the presence of the hearing of the children, or demeaning belittling or abusing the other parties in the presence or in the hearing of the children, or allowing other people to do so. 

13. Given the circumstances and the history as outlined in the report of Ms F, and which was implicit in orders made in June of last year, I am satisfied that in the circumstances, that is in the best interest of the children, having regard to the nature of these interim proceedings. 

14. I have given the mother leave to file expert evidence from a psychiatrist as to the impact of that time upon her, and impact of that communication upon her. That would be at her own expense. I have ordered a family report, and having regard to the broader matters set out in s 66C of the Family Law Act 1975 (Cth) in the needs to provide safety for the children, I am satisfied that in the circumstances of this case, those interim orders are appropriate. It is intended that this matter will be heard, likely, by the Chief Justice of this Court in May of next year, and the matter will be of short compass. Accordingly, I have made the orders that I have set out.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 2 December 2020.

Associate: 

Date:  23 December 2020