Harridge & Harridge

Case [2010] FamCA 445

FAMILY COURT OF AUSTRALIA

HARRIDGE AND ANOR & HARRIDGE AND ANOR [2010] FamCA 445
FAMILY LAW – CHILDREN – RISK ASSESSMENT – Where the father has been incarcerated for offences involving child pornography – Consideration of unacceptable risk of the father and the role of orders in ameliorating such risk – Where the children would benefit from a meaningful relationship with the father – Where the mother and Independent Children’s Lawyer assert that the paternal grandparents present a risk of inadequate supervision of time between father and children – Consideration of risk of supervision by the grandparents – Orders shaped to mitigate the risks while allowing a beneficial, meaningful relationship between father and children to develop – Section 65L supervisory orders made for the explanation of orders to the children, monitoring of father-child time and liaising of community correctional officers with the family consultant and Independent Children’s Lawyer
Evidence Act 1995 (Cth) s 144
Family Law Act 1975 (Cth) ss 60CC, 65CA, 65DAA, 65DAC, 65L
CDJ & VAJ (1998) 197 CLR 172
Godfrey v Sanders [2007] FamCA 102
M v  M (1988) 166 CLR 69
Marsden and Winch (No. 3) [2007] FamCA 1364
McCall & Clark (2009) FLC 93-405
McCoy v Wessex (2007) 38 Fam LR 513
N and S and the Separate Representative (1996) FLC 92-655
Napier v Hepburn (2006) 36 Fam LR 395
Partington v Cade (No 2) (2010) 42 Fam LR 401
Potter v Potter (2007) 37 Fam LR 208
Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218
APPLICANTS: Mr and Mrs Harridge (Snr)
1ST RESPONDENT: Ms Harridge
2ND RESPONDENT: Mr Harridge
INDEPENDENT CHILDREN’S LAWYER: Ms O’Neill
FILE NUMBER: BRC 1484 of 2008
DATE DELIVERED: 4 June 2010
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Murphy J
HEARING DATE: 8 – 9 March 2010

REPRESENTATION

THE APPLICANTS: Self-represented
COUNSEL FOR THE 1ST RESPONDENT: Ms Howe
SOLICITOR FOR THE 1ST RESPONDENT: Sempre Vero Lawyers
COUNSEL FOR THE 2ND RESPONDENT: Mr Crews
SOLICITOR FOR THE 2ND RESPONDENT: Peter Hofstee & Associates

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER:

 Mr Fleetwood
SOLICITOR FOR THE
INDEPENDENT CHILDREN’S LAWYER 		Legal Aid Queensland

Orders

Parental Responsibility

  1. IT IS DECLARED THAT the presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (“the Act”) is rebutted in the best interests of the children A born … May 2004 and N born … October, 2005.

  2. In respect of all “major long-term issues” as that expression is defined in the Act the mother shall, save as is hereafter specifically ordered, have all the duties, powers, responsibilities and authority which the mother and father would, save for this order, otherwise have had by law in relation to the children.

Live With

  1. The children shall live with their mother.

Section 65L Order

  1. Pursuant to s 65L of the Act, the Director Child Dispute services shall appoint a family consultant to supervise compliance with these parenting orders within the meaning of the said…

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AGLC
Harridge & Harridge [2010] FamCA 445
Case
[2010] FamCA 445
Decision Date

CaseChat Overview and Summary

This case concerned parenting orders made by Murphy J in the Family Court of Australia. The dispute involved the father and paternal grandparents of two children, A and N, born in 2004 and 2005 respectively.

The court was required to determine the presumption of equal shared parental responsibility and to make orders regarding the children's living arrangements, time spent with each parent and grandparents, communication, and other related matters. Crucially, the court had to consider the best interests of the children in light of the circumstances, which necessitated a detailed assessment of the father's situation and its potential impact on the children.

Murphy J found that the presumption of equal shared parental responsibility was rebutted in the best interests of the children. The court ordered that the children live with their mother and that she have sole parental responsibility for all major long-term issues. A family consultant was appointed under s 65L of the *Family Law Act 1975* to supervise compliance with the orders and to assist the father and paternal grandparents. The orders established a highly supervised and structured regime for any time the children might spend with the father and paternal grandparents, with significant emphasis on the involvement of the family consultant and the father's community corrections officer.

The court made detailed orders concerning communication, including restrictions on electronic communication and specific times for telephone contact. Furthermore, mandatory injunctions were issued requiring the parties to participate in the s 65L process, provide information regarding any courses undertaken concerning sexual offending involving children, and authorise the family consultant and Independent Children's Lawyer to discuss matters with relevant professionals. The father was specifically required to authorise his community corrections officer to provide details of any required treatment or counselling to the family consultant and Independent Children's Lawyer. The mother was ordered to keep the father and paternal grandparents informed of the children's residential address, contact details, and schooling, and to authorise the release of information regarding the children's progress to the father. The court also authorised publication of the orders and reasons for judgment to specific individuals and professionals involved in the father's supervision and treatment. The Independent Children's Lawyer was to be discharged after 12 months, with liberty to relist the matter.

Orders

Orders of the court

Parental Responsibility

1.

IT IS DECLARED THAT the presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (“the Act”) is rebutted in the best interests of the children A born … May 2004 and N born … October, 2005.

2.

In respect of all “major long-term issues” as that expression is defined in the Act the mother shall, save as is hereafter specifically ordered, have all the duties, powers, responsibilities and authority which the mother and father would, save for this order, otherwise have had by law in relation to the children.

Live With

3.

The children shall live with their mother.

Section 65L Order

4.

Pursuant to s 65L of the Act, the Director Child Dispute services shall appoint a family consultant to supervise compliance with these parenting orders within the meaning of the said section, and to thereby give assistance to the father and paternal grandparents as to compliance with, and the carrying out of, these parenting orders and their obligations pursuant to these orders.

5.

Without limiting the generality of this s 65L Order (or the occasions upon which the family consultant might choose to see the children or any or all of the parties), the family consultant appointed pursuant to the previous paragraph of this order shall:

(a) As soon as reasonably practicable after the making of these Orders, and prior to the first period of time provided for in these Orders, see the children in the presence of the parties (in such manner as the family consultant shall consider appropriate) for the purpose of explaining the terms of these orders to the children in an age-appropriate way and for the purpose of explaining the obligations cast upon the parties by these orders, and their rationale, as explained in the court’s Reasons for Judgment;

(b) After the first two periods of time between the children and as proximate to the third occasion as reasonably practicable (being the first occasion upon which the father shall spend time with the children) to again see the children in the presence of the parties (in such manner as the family consultant shall consider appropriate) in preparation for their first period of time with the father and to reinforce the obligations cast upon the parties by these orders.

(c) After the period of time in January contemplated by the succeeding paragraph of these orders, to again see the children in the presence of the parties (in such manner as the family consultant shall consider appropriate) for the purposes of assessing the children’s progress and the supervision of time by the grandparents.

(d) Make and record observations of all matters considered relevant during each and all of such sessions conducted by the family consultant;

(e) Consult with the Independent Children’s Lawyer as considered appropriate;

(f) Consult with the father’s community corrections officer or such psychiatrist, psychologist, therapist or counsellor consulted by the father.

Time With the Father and Paternal Grandparents

6.

The father shall not spend time with, nor communicate with, the children except in accordance with the succeeding provisions of these orders.

7.

The paternal grandparents shall not spend time with, nor communicate with, the children save in accordance with the succeeding provisions of these orders.

8.

Subject to the parties and children participating in the process contemplated by paragraph 5 of these orders, the children shall spend face to face time with the paternal grandparents from 9.00am to 5.00pm on a Saturday (or, in school holiday periods, another day of the week agreed in writing) nominated in writing by the mother not less than 21 days prior to its occurrence:

(a) In approximately late February, so as to be an approximate mid-point between the December / January and Easter school holiday periods;

(b) In the Easter school holiday period;

(c) In approximately late May so as to be an approximate mid-point between the Easter and June / July school holidays periods;

(d) Except in 2010, in the June / July school holiday period;

(e) In approximately mid-August, so as to be an approximate mid-point between the June/July and September / October school holidays;

(f) In the September / October school holidays;

(g) In approximately early November, so as to be an approximate mid-point between the September / October and December / January school holidays;

(h) In the first week of the December / January school holidays;

(i) In the last week of the December / January school holidays

7.

Subject to the parties and children participating in the process contemplated by paragraph 5 of these orders the children shall in addition, spend face to face time with the paternal grandparents from 3.00pm until 6.00pm on Christmas Day in 2010 and between those hours each alternate year thereafter and from 9.00am to 12.00pm on Christmas Day in 2011 and between those hours each alternate year thereafter.

8.

Subject to the parties and children participating in the process contemplated by paragraph 5 of these orders, the children shall spend face to face time with the father on the third and subsequent occasions provided for in paragraph 6 of these orders, and the occasions specified in paragraph 7 of these orders, with the whole of each and all such periods of time to be supervised by the paternal grandparents, who shall both be present for the whole of each and all such periods of time.

Communication

9.

The father and grandparents shall be at liberty to send to the children by pre-paid post all such letters and cards as they might choose, provided that each and all are sent to the mother at the mother and children’s residence and the mother who shall be at liberty to read any and all such communications.

10.

The father shall be at liberty to communicate by telephone with the children between 6.30 pm and 7.00pm each Wednesday (or such other day as might be agreed), but subsequent to the s65L consultation contemplated by paragraph 5(a) of these orders.

11.

The paternal grandparents shall be at liberty to communicate by telephone with the children between 6.30pm and 7.00pm each third Wednesday subsequent to the s65L consultation contemplated by paragraph 5(a) of these orders.

12.

Neither the father nor grandparents shall communicate with the children by e-mail, facebook® or other form of computer communication, or by text message.

Mandatory Injunctions

13.

Pursuant to s 68B of the Act and so as to give better effect to the parenting orders hereby made, each of the parties shall do all such things, sign all such documents and pay all such reasonable fees as might be required to:

(a) Participate in the s 65L process contemplated by paragraph 5 of these orders;

(b) Provide to the Independent Children’s Lawyer, the name and other identifying details of any and all courses undertaken by any of them having as their focus sexual offending involving children (including offences involving child pornography) or which seek to provide an understanding of the nature of such offending;

(c) Authorise the family consultant undertaking the process required by paragraph 5 of these orders and/or the Independent Children’s Lawyer to discuss with, and receive information from, any psychiatrist, psychologist, counsellor or therapist consulted by any of the parties with reference to sexual offending involving children (including offences involving child pornography) or which seek to provide an understanding of the nature of such offending.

14.

Pursuant to s 68B of the Act and so as to give better effect to the parenting orders hereby made, the father shall do all such things, sign all such documents and pay all such reasonable fees as might be required to authorise and request the community corrections officer monitoring his probation (or parole as the case may be) to provide to the family consultant undertaking the process required by paragraph 5 of these orders and/or the Independent Children’s Lawyer details of all courses, treatment or counselling required of the father as a condition of his parole.

15.

The mother shall keep each of the father and the paternal grandparents appraised of:

(a) The children’s residential address;

(b) A telephone number upon which paragraphs 10 and 11 of these orders can be facilitated;

(c) The name of any child care centre, kindergarten or school as the case may be at which the children or either of them is enrolled

16.

The mother shall authorise any child care centre, kindergarten or school as the case may be to provide to the father all such information as to the progress of the children as the father might reasonably request and, failing the provision of any such specific authority by the mother, this order shall, of itself, be authority for the father to receive all such information.

17.

That, at the earliest possible time or within 4 hours, each party shall inform the other party of:

a) Any serious accident or the diagnosis of any significant medical condition suffered by either child;

b) Surgery or the potential for same; hospitalisation or treatment for any serious injury, illness or disability pertaining to either child.

Authorisation of Publication

18.

Pursuant to s 121(9)(g) of the Act an account of the proceedings in this case, namely these orders and the court’s Reasons for Judgment accompanying same be authorised for publication, via the Independent Children’s Lawyer, to:

(a) The community corrections officer responsible for the father’s probation (or parole as the case may be) or his or her duly authorised delegate;

(b) Any appropriately qualified person conducting any course or engaging in any treatment of, or consultation with, the father as a requirement of his parole;

(c) Any psychiatrist, psychologist, counsellor or therapist consulted by any of the parties with reference to sexual offending involving children (including offences involving child pornography) or which seek to provide an understanding of the nature of such offending.

The Independent Children’s Lawyer

19.

The Independent Children’s Lawyer be discharged 12 months from the date of these orders.

Liberty to Apply

20.

The Independent Children’s Lawyer have liberty to relist this matter on the giving of 5 days notice in writing and, if reasonably practicable, any such further application be heard by Murphy J.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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