Harris and Coates (No 3)

[2012] FamCA 1021

FAMILY COURT OF AUSTRALIA

HARRIS & COATES (NO. 3) [2012] FamCA 1021

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where there are concerns that the children have witnessed family violence – where the children’s therapist supports supervised contact with the father – where the parties have not yet attempted to negotiate an appropriate supervisor – best interests – orders that the father continue to have contact with the children by written correspondence.

Family Law Act 1975 (Cth)

APPLICANT: Mr Harris

RESPONDENT: Ms Coates

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of South Australia

FILE NUMBER: ADC 1718 of 2011

DATE DELIVERED: 30 November 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 30 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Howe

SOLICITOR FOR THE RESPONDENT: Howe Martin & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission Of South Australia

Orders

1. During the period of the adjournment the father have contact with the children by written correspondence directed to the children and that the mother make that correspondence available to the children and encourage their written response.

1. The matter is adjourned to Monday 18 February 2013 at 9.15 am before the Honourable Justice Dawe.

1. Any affidavit material upon which any party seeks to rely to be filed and served by 4.00 pm on Tuesday 12 February 2013.

1. Paragraph 4 of the father’s Application in a Case filed on 21 November 2012 in relation to the Child Protection Service disclosure is adjourned to 18 February 2013 at 9.15 am before the Honourable Justice Dawe.

1. Paragraph 5 of the father’s Application in a Case filed by the father on 21 November 2012 is dismissed.

1. The application for costs of the mother in relation to the dismissed application today is reserved.

BY CONSENT IT IS FURTHER ORDERED THAT

1. The mother provide copies of all medical reports and school reports for each of the children within fourteen [14] days of receipt of the same.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris & Coates (No 3) 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 1718 of 2011

Mr Harris

Applicant

And

Ms Coates

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. Negotiations are not appropriate in open Court.  The parties need to confer and reach some agreement to put before the Court in the appropriate way.  The issues concerning the children have been outstanding before the Court for some time and I understand the father is anxious to resume his relationship with the children.

2. The orders that are being sought relate to the children, J who was born in August 2004, L who was born in June 2006, and M who was born in May 2008. 

3. There have been significant issues raised in the proceedings concerning matters not only relating to the benefit to the children of having a meaningful relationship with both of their parents but also the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

4. The issues of family violence were referred to previously.  The Child Protection Services (“the CPS”) has been arranging therapy in relation to the three children for a considerable period of time and have been providing reports to the Court through the Independent Children’s Lawyer.  In these interim proceedings what is in the best interests of the children taking into account the relevant factors is the paramount consideration.

5. As has been clear from the decisions of the matter previously, the CPS have determined that it seemed likely that J and L had witnessed violence in the family.  The matters have yet to be determined as to whether violence which they witnessed was violence by the father towards the mother.

6. The decision of the Court previously refers to the considerations of the issue of violence yet to be determined but the need, in the meantime, to protect the children.  The Courts have previously said that they will follow, and have followed, the recommendations of the children’s therapist.

7. The order that the father seeks today is that he have time with the children (albeit even supervised time) quickly rather than awaiting the period which is suggested by the mother and the Independent Children’s Lawyer (as recommended by the children’s therapist) that there be a further period of time in which the father continues with written correspondence to the children and thereafter consideration be given to some supervised time.

8. The parties have not attempted yet to negotiate the identity of an appropriate supervisor.  The report, which is the report of 22 November 2012, makes a recommendation that the children have a desire to see their father but have reservations about the contact occurring without the presence of a person that they feel comfortable with.

9. The report also indicates that the therapy is ongoing to support the family’s therapeutic gains and assistance with any difficulties that may arise in the future.  Specifically, that report, as indicated, suggests that the correspondence should be continued for a period and then consideration be given to ongoing supervised time with the children.

10. I take into account that it appears from the reports before the Courts that the children have an interest in maintaining their relationship with their father under certain conditions.  I also take into account the issues which in the past have related to what is in the children’s best interests in their development sense, both emotionally and psychologically.

11. During the period of the adjournment, therefore, I consider it is appropriate for the recommendations of the children’s therapist to be followed.  That will provide for the father to regularly correspond with the children, the mother to encourage the children to reply to that correspondence and for the parties to attempt negotiations or file relevant material concerning any proposed supervisors.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 30 November 2012.

Associate: 

Date: 7 December 2012