HARRIS & COATES

[2013] FamCA 110

FAMILY COURT OF AUSTRALIA

HARRIS & COATES [2013] FamCA 110

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – best interests – orders for the children to spend supervised time with the father pending trial.

Family Law Act 1975 (Cth)

APPLICANT: Mr Harris

RESPONDENT: Ms Coates

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 1718 of 2011

DATE DELIVERED: 18 February 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Justice Dawe

HEARING DATE: 18 February 2013

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 SA

Orders

Upon Noting

1. the matter is adjourned for further consideration (and in particular to consider the question of reports from the Contact Centre C to be obtained by the Independent Children’s Lawyer concerning the time spent between the children and the father and to give consideration to the question of the subpoena issue to the therapist to provide records);

2. it being foreshadowed by solicitor for the mother that a Notice of Discontinuance may be filed in relation to the property proceedings and therefore an estimate of the length of trial cannot be determined at this stage;

3. parties advised to give serious consideration as to their witnesses and ensure that the witness is relevant to the evidence to determine the matter before the Court at trial.

IT IS ORDERED THAT:

1. The father is directed forthwith to attend upon the Pathways Kiosk and take all steps necessary to ensure that his registration with Contact Centre C for supervised time takes place immediately.

1. As soon as Contact Centre C can make their facilities available that the father spend time with the children at Contact Centre C at times to be directed by the centre on the understanding that this will be at least two [2] hours each fortnight.

1. Further consideration of the father’s time with the children is adjourned to Monday 3 June 2013 at 9.15 am before the Honourable Justice Dawe.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris & Coates 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. The affidavits which have been filed since the matter was last before the Court in November 2012 set out clearly the substantial facts about the attitudes of the parties and their capacity to undertake their role as parents which are in dispute. 

2. The father is unrepresented and has filed affidavits which to a large extent strenuously deny the basis of the mother’s concerns about the children’s ongoing time with the father.  He accuses those persons who had been involved with the matter (including lawyers and the Court) of inappropriate response to his application.

3. The Application in a Case which is before the Court is an application in which the father seeks:

   (1)      a family assessment be undertaken as soon as possible;

   (2)      supervised access to begin immediately;

   (3)      the father be provided with medical information and school reports.

4. I have dealt with paragraph 3 on a previous occasion. 

5. Paragraph 4 relates to the Independent Children’s Lawyer providing copies of written communication and details of calls he has had with Child Protection Service.  No submissions were put to me today as to why that at this stage such an order would be appropriate.

6. Dealing first with the question of a Family Assessment to be undertaken as soon as possible, the Court is aware that a Family Assessment was at one stage prepared by Mr P some years ago. 

7. The matter has currently been referred already to the trial list some time ago and is awaiting allocation of a trial date when there is judicial availability.  It is therefore in a queue awaiting allocation of trial dates. 

8. It would not be appropriate to direct that a Family Assessment take place immediately.  There are significant factors which have arisen recently which may need to be considered and further information placed before the Family Consultant.

9. It is also the Court’s view that particularly in cases such as this where the children are receiving therapy (and have had considerable difficulties which may well have arisen due to the inability of their parents to carry out their responsibilities as parents and deal with each other in a satisfactory and appropriate way) it is not appropriate for the children to have to undergo numerous interviews simply for the Court process. 

10. It will be appropriate to have a Family Assessment prepared when it is known when the trial is likely to take place and once the therapy for the children has progressed further.

11. I have been given information from the bar table this morning by the father in person, counsel for the mother and the Independent Children’s Lawyer that there was a recent incident in relation to the eldest child, J, in which he threatened self harm.  I do not have the evidence on oath before me about the background to this matter but it apparently raised sufficient concern with the mother for the mother to make immediate arrangements for J to be seen by the therapists who have been undertaking the therapy at the Child Protection Services for all of the children.

12. The Court does have now before it a letter of 13 February 2013 concerning all three children from the Women’s and Children’s Hospital Child Protection Service dealing with the ongoing therapy the children have had.  The short report is, as the father has pointed out and conceded by the Independent Children’s Lawyer, in terms that seem repetitive of expressions that have previously been used in earlier reports, however, it is clear that the qualified people, being a social worker and a clinical psychologist, have taken into account the background to the matter and have been continuing to provide treatment to the children over a considerable period.  In relation to their conclusions the clinicians refer to the matters which have been raised and an indication that at some time the children have indicated an interest in spending time with the father. 

13. The report concludes:

    As previously discussed, if the Court directs that contact should commence between the children and their father then this would need to be supervised by an appropriate person to ensure the children’s emotional wellbeing and sense of safety.  Ideally this person would be someone who understands the child protection concerns and a person the children have had an opportunity to become familiar with and develop trust in.  Although the children have recently continued to express a desire to see their father they have stated that they have reservations about the contact occurring without the presence of a person that they feel comfortable with.

    and concludes:

    At this stage therapy is ongoing to support the family’s therapeutic gains and assist with any difficulties that may arise in the future.

14. In view of the information about the behaviour of the eldest child it is obviously appropriate for the therapy to continue.  There has been a suggestion from the bar table that an independent therapist be appointed for the children.  I am satisfied that the therapist working with the Women’s and Children’s Hospital in the Child Protection Services are sufficiently independent.  I am also aware of the fact that the children have developed a relationship with the Children’s Protection Service and that it is not necessarily in the children’s best interests at this stage to bring into their lives and their therapy situation a new person.  In that regard, therefore, I do not propose to accede to any requests from the bar table that those arrangements change.

15. What has to be determined, even at this interim stage is what is in the best interests of the children.  As the Court has indicated the parties are in considerable dispute about the background and history of the matter and the basis upon which the children need to be protected, if at all. 

16. It is clear from the Children’s Protection Service report that there is still some hesitation in relation to the children spending unsupervised time with their father.  It will be up to the Court at a later stage to determine whether that hesitation is as a result of the behaviour of either the father or the behaviour of the mother.  In particular, the Court notes that the parties have been unable to communicate in any sensible way as parents for a considerable period of time and that the children would appear to be aware of ongoing Court proceedings between their parents.

17. As the matter is awaiting an allocation of a trial date I consider it appropriate at this stage to err on the side of caution and make arrangements for the children to spend time with their father at the Contact Centre C.  I have already made a direction to the father to attend upon the Pathways Kiosk attendant to ensure that the registration is confirmed.  I am told that the mother has already registered at the Contact Centre C.  I therefore propose to order that as soon as the contact centre can make their facilities available that contact take place between the father and the children at the Contact Centre C at times to be directed by the centre on the understanding that this will be at least two hours each fortnight.

18. In relation to the question of the term of that contact, it would appear appropriate that the matter be adjourned for further consideration, in particular to consider the reports from the Contact Centre to be obtained by the Independent Children’s Lawyer, Mr Hemsley, concerning the time spent between the children and the father and to give consideration to the question of a subpoena issuing to the therapists to provide records.  In that regard I do not propose to make any such order today as it would appear likely that the therapists may want to be heard in relation to that issue, bearing in mind that certainly in State jurisdictions where therapy is being given to the children concerning allegations of serious abuse it is often the case that the therapists consider the treatment to be privileged and not the subject of evidence before the Court.

19. That may not be the circumstances in this case but I think they need to be put on notice. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 18 February 2013.

Associate: 

Date:  27 February 2013