HELPMAN & HELPMAN

[2015] FamCA 619

FAMILY COURT OF AUSTRALIA

HELPMAN & HELPMAN [2015] FamCA 619

FAMILY LAW – CHILDREN – Application by the mother for interim orders suspending the children’s’ time with the father pending the preparation and release of a family report – where one child has disclosed his concerns to the child’s counsellor and the Department of Health and Human Services was notified as a result of that concern – where a family report can be prepared and completed within one month – Goode & Goode considered – interim orders made that the children’s time with the father be suspended, that an Independent Children’s Lawyer be appointed and that a family report be prepared pursuant to s 62G of the Family Law Act 1975 (Cth)

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

APPLICANT: Ms Helpman

RESPONDENT: Mr Helpman

FILE NUMBER: MLC 4880 of 2012

DATE DELIVERED: 1 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 1 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. Paragraph 4 of the orders made 16 November 2012 be suspended until further order.

2. Pursuant to s 68L(2) the Family Law Act 1975 (Cth) the children B born … 2009 and C born … 2006 be separately represented AND IT IS REQUESTED THAT Victoria Legal Aid make arrangements as soon as practicable to secure that independent representation of the said children's interests.

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

4. Upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

5. Within 48 hours of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

6. By 4.00 pm on 8 July 2015 the father file and serve upon all other parties a financial statement that complies with Chapter 13 of the Family Law Rules.

7. By 4.00pm 15 July 2015 the mother file and serve any affidavit in reply to the father’s affidavit filed 24 June 2015.

8. The parties and the children B born … 2009 and C born … 2006 attend upon Mr D upon and at the direction of Mr D for the purposes of the preparation of a family report to be completed and released to the parties by 4.00 pm on 31 July 2015. The report be prepared by Mr D at the expense of the mother at first instance and the mother have liberty to apply for orders requiring the father to contribute to the costs of Mr D’s report. 

9. Mr D be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.

10. All extant applications be adjourned for further hearing to the Senior Registrar’s duty list at 10.00 am on 4 August 2015.

AND THE COURT NOTES THAT

1. The exhibits have been returned this day to the subpoenas clerk pending the further hearing of the matter.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Helpman & Helpman 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 MELBOURNE

FILE NUMBER: MLC 4880  of 2012

Ms Helpman

Applicant

And

Mr Helpman

Respondent

REASONS FOR JUDGMENT

1. This is the first return date of the mother’s Initiating Application filed 28 May 2015.  In that application, the mother seeks orders discharging paragraphs 2, 4 to 6, 11 and 12 of orders made by consent on 16 November 2012.  The orders the mother seeks discharged include orders that she and the father have equal shared parental responsibility for the children C born in 2006, aged eight years and B in 2009 aged six years; that the children spend time with the father each alternate weekend from after school on Friday until the commencement of school on Monday, each alternate Thursday from after school that day until the commencement of school on Friday and during school holidays and other special occasions; and telephone communication at the children’s request.  The mother also seeks an order for the preparation of a family report at the joint expense of the parties and the suspension for the father’s time with the children, pending preparation and release of that report. 

2. Counsel for the mother or the mother’s solicitor have made enquiries of counsellors who might be available to prepare a report and those enquiries have revealed that Mr D could prepare and complete a report by the end of July.  That report will cost $4,400 inclusive of GST and the mother proposes to pay for that report at first instance.  The other option, which was a report to be prepared by a Family Consultant at the Court, would not have been available until late August. 

3. The mother also seeks an order that the husband file a financial statement in accordance with the Family Law Rules 2004 (Cth) and she seeks to reserve the question of any contribution to be made to the costs of the report to be prepared by Mr D by the father, pending him filing that statement of financial circumstances. I propose to accede to that application.

4. Counsel for the mother also submitted, and it seems to be common ground, that it would be appropriate in this case to appoint an Independent Children’s Lawyer.  Given the respective allegations made by the parties, in particular the allegations of physical abuse and possible influencing and alienation of the children, I am satisfied that it is appropriate to appoint an Independent Children’s Lawyer and I propose to do so. 

5. On 24 June 2015, the father filed a Response to the mother’s Initiating Application in which he seeks that the orders made by consent on 16 November 2012 remain in force and such further orders as this Court deems appropriate.  Both the mother and the father have filed lengthy and detailed affidavits and the mother has also filed a Form 4 Notice of Child Abuse, Family Violence or Risk of Family Violence.  Counsel for the mother submitted that although the father had filed the affidavit in support of his Response to Initiating Application on 24 June 2015, the mother did not see that affidavit until the following day and he makes the point that although the father was served with the mother’s application on 29 May 2015 he only filed his Response to Initiating Application on 24 June 2015.

6. Counsel submitted that as the mother had not had the opportunity to read the father’s affidavit or respond to the matters contained in that affidavit, it might be necessary to seek an adjournment of the matter, but that in circumstances where there was to be the appointment of an Independent Children’s Lawyer and a family report prepared, his client would have the opportunity to respond to the father’s affidavit without the necessity for an adjournment.  That being said, it was his submission that the matters I must consider must be considered in light of the mother not having had the opportunity to respond to the father’s affidavit.

7. In summary, the mother’s case in support of her application that the father’s time with the children be suspended pending the preparation and release of a family report and the appointment of the Independent Children’s Lawyer is that there have been longstanding issues with respect to the children, in particular C, spending time with the father and expressing concern, again, in particular C, about spending time with the father.  She would say so much so that after the children have spent time with the father since the resumption of that time in early 2015, she has had to pull the car over on the way home to console C, who has been sobbing and begging her not to send him to the father’s anymore.

8. The mother deposes that in early 2015, C’s teacher reported having some concerns surrounding C’s emotional state and he was referred to another teacher for assistance, who thereafter recommended that the mother contact E Org and obtain some counselling for C.  The mother deposes that C has been attending regular counselling sessions at E Org and the E Org file, which has been subpoenaed, reveals that there have been some five sessions of counselling commencing on 31 March 2015,  the last of those sessions being on 2 June 2015. 

9. The mother further deposes that as a result of C expressing his concerns to the counsellor at E Org, the matter was reported to the Department of Health and Human Services (“the Department”).  Although it is not possible to identify who reported the matter to the Department, it is clear from the report provided to the Court by the Department dated 29 June 2015 that there was a notification with respect to concerns about C, but that C had been linked in with appropriate supports, including counselling, and that the mother was notified about the concerns and had acted protectively and was able to seek legal advice if necessary, as there were orders made in the Family Court in place.

10. The father’s case is, in essence, that he has not physically or emotionally abused the children and that the mother’s allegations that the children are fearful of him are not consistent with his experience of the children in his care. Insofar as the children may have expressed any fear of spending time with him, and I am satisfied on the basis of the case notes produced pursuant to subpoena by E Org that, at the very least, C has expressed concerns to his counsellor at E Org, the father says that those concerns are a result of the mother’s attitude towards him and her failure to promote the children’s relationship with him.   

11. As the Full Court said in Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 (“Goode & Goode”) at [81], in making interim decisions, the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. The Full Court went on at [82] to set out the pathway to be followed in the determination of an interim parenting case, which requires the Court to essentially identify the competing proposals of the parties, identify the issues in dispute, identify any agreed or uncontested relevant facts, consider the matters in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) that are relevant and, if possible, make findings about them, although in interim proceedings, there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

12. The presumption of equal shared parental responsibility applies in interim proceedings unless the Court determines it would not be appropriate for that presumption to be applied. If the Court determines it appropriate for the presumption to be applied, and it is not otherwise rebutted, the Court must consider whether orders that the child spend equal or substantial time with each parent is in that child’s best interests and reasonably practical. If the presumption does not apply or is rebutted, the Court must consider having regard to the matters in s 60CC of the Act as to what order or orders are in the child’s best interests.

13. The Full Court also said in Goode & Goode that the procedure for making interim parenting orders will continue to be an abridged process where the scope of enquiry is significantly curtailed, where the Court cannot make findings of fact, and where the Court should not be drawn into issues of fact or matters relating to the merits of the substantive case with findings not possible.  The Court must also look to the less contentious matters, such as the agreed facts and issues not in dispute, and have regard to the care arrangements prior to separation, the current circumstances of the parties and the children, and the parties’ respective proposals for the future.

14. The scope of the enquiry in this case is even more limited in that it relates to the question of whether the orders that the children spend time with the father should be suspended pending the appointment of an Independent Children’s Lawyer, the preparation of a family report and a further hearing on 4 August 2015.  There is little in this case about which the parties agree.  However, it would appear to be common ground that the children have lived with the mother since separation.  It would also appear to be common ground that they have spent time with the father since separation, albeit not always on a regular basis.  It would also appear to be the case that there was a significant period during 2014 when the children’s time with the father was limited, by virtue of the fact that he was living interstate, to two visits to Queensland by the children and three visits by the father to Melbourne to see the children.

15. Although it is the mother who makes the allegation that C has expressed concern and a fear of the father, it is also the case that C has expressed his concerns and that fear to the counsellor at E Org.  I do, however, take into account the fact that it remains to be determined whether C’s concerns are his own concerns or reflect the concerns of the mother.  In circumstances such as these where there are competing allegations and the evidence has yet to be tested, I am satisfied that I should proceed cautiously.  I am mindful of the fact that the children have not seen the father since 16 May 2015 and that it will be a further month before a family report can be completed and the matter re-listed for further hearing.

16. It is also the case, however, that the mother has acted promptly to initiate proceedings and any delay in obtaining a hearing date of that matter, an adjourned date, cannot be said to have been caused by any delay on the mother’s part.  However, whilst mindful of the fact that the father, by the time the matter comes back for hearing, will not have seen the children for some three months, I must also consider the impact upon the children, and C in particular, of having to spend time with the father if, as alleged by the mother and recorded by C’s counsellor at E Org, he is fearful of the father and the damage that that might cause to the children’s welfare, including their relationship with the father in both the short and long term.

17. It was submitted by counsel for the mother that the Court must weigh up the risks of the parties’ respective proposals.  I am satisfied, particularly in circumstances where there have been lengthy periods when the children have not been spending time with the father pursuant to the orders, that the risks of the children now spending time with the father, if the mother’s allegations are true, far outweigh the risk of them not spending time with the father for the next month if, as he submits the Court will ultimately find, his position accurately reflects his relationship with the children. 

18. Insofar as it is submitted by the father that the Department has no concerns as to the welfare of the children, I note that that is in the context of them being satisfied or appearing to be satisfied that the mother has acted appropriately.  The mother does not, for the purposes of the hearing before me, seek to discharge the order that the father and mother have equal shared parental responsibility for the children.  That being the case, I have considered whether or not it is in the children’s best interests and reasonably practical for them to spend equal or substantial time with each of the father and the mother, in this case (it being the father’s case) that it be substantial time in accordance with the existing orders. I am satisfied that pending the further hearing, it is not in their best interests to do so and that erring on the side of caution, until the Court has the benefit of the evidence of an independent expert and the children are represented, the children’s time with the father should be suspended.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 1 July 2015.

Associate: 

Date:  29 July 2015