Houston and Houston

[2011] FamCA 44

FAMILY COURT OF AUSTRALIA

HOUSTON & HOUSTON [2011] FamCA 44

FAMILY LAW – CHILDREN – Where matter is set down for a final hearing – Where interim orders given some twelve months prior – Where father has sole parental responsibility – Where mother seeks sole parental responsibility and father to have limited electronic communication with children – Where appeal is before the Full Court – Mother’s applications dismissed pending Full Court hearing – Updated family report ordered

APPLICANT: Mr Houston

RESPONDENT: Ms Houston

INDEPENDENT CHILDREN’S LAWYER: Ms Falcomer, Solicitor

FILE NUMBER: BRC 10248 of 2007

DATE DELIVERED: 31 January 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 31 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harris, Solicitor appearing for the Applicant Father

SOLICITORS FOR THE APPLICANT: Family Law Doyle Keyworth & Harris

COUNSEL FOR THE RESPONDENT: The Respondent Mother appearing in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falcomer, Solicitor of Legal Aid appearing by telephone as the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

1. The case management review hearing listed to 21 February 2011 be vacated.

2. The proceedings be adjourned before a Registrar to a date to be fixed at the Brisbane Registry of the Family Court.

IT IS FURTHER ORDERED THAT:

1. The Mother’s Application in Form 2 filed 21 October 2010 is dismissed.

2. The Mother’s Application in Form 2 filed by leave on 31 January 2011 is dismissed.

3. The Mother and Father shall attend and ensure the children, N born … May 1999 and twins R and K born … August 2000, attend Mr J for the preparation of an updated Family Report on 19 April 2011 and all at other times as requested by Mr J and/or the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment under the pseudonym Houston & Houston is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10248 of 2007

MR HOUSTON

Applicant

And

MS HOUSTON

Respondent

REASONS FOR JUDGMENT

1. This matter was heard by me from 8 to 12 February 2010.  Reasons for judgment were delivered on 19 February 2010.  The mother was not legally represented at the hearing before me in February last year.  The father and the Independent Children’s Lawyer were both represented by counsel.  For reasons I gave at the time, I made orders on an interim basis.  The matter had been set down for a final hearing, but I had concerns about certain aspects.

2. The father was to have sole responsibility and be the primary caregiver, and the mother was to have supervised time with the children, a range of phone calls and things of that nature.  I adjourned the proceedings for a period of 12 months. 

3. I’m told that that has been listed for 21 February this year.  I propose to vacate that date.  I see no point because the Full Court will be seized of jurisdiction in the matter, as the matter is listed for the hearing of the mother’s appeal against my decision of 19 February 2010, and that appeal will be heard, I am told, on

   
   

   17 February 2011, a little over two weeks time. 

4. The orders have been in place now for almost 12 months.  It appears the children’s school records are satisfactory.  The parties had liberty to bring the matter back on before me on 48 hours notice.  There has been no such application in a case until the mother filed the application on 21 October 2010, seeking that:

   ·    I disqualify myself;

   ·    that the children reside with the mother pending the appeal; and

   ·    the children be allowed to attend T Primary School in northern New South Wales; and

   ·    the father to have supervised contact only pending the appeal.

5. The mother filed a supporting affidavit.  I have had regard to the allegations made by the mother in that material, that the children have been coached by the father and his family, that the children are residing at a property subject to criminal proceedings and things of that nature.  Where I gave detailed reasons after a five day hearing, I am not minded at an interim hearing, a little over two weeks before the Full Court hears the appeal, to accede to the mother’s application.

6. Nothing daunted, the mother sought leave to file an application on today’s date with a supporting affidavit, and she produced a tape which appears to be the sentencing submissions made by the barrister for the father’s brother on 10 August 2006 in the V Local Court.  I do not believe I will be assisted in any way by that at this point in time.  I am going to give my decision, and leave it to the Full Court to determine what it wants to do with it, if it is in fact produced to them on 17 February 2011.

7. The orders the mother’s seeks by the amended application in a case is:

   ·    that she have sole parental responsibility for the children;

   ·    the father have Internet video calls with the children twice a week and various other orders as set out in that documentation.

8. The mother has filed an affidavit in which she relies heavily, apparently, on the contents of the cassette tape.  All I can say is that all of the material to which the mother makes reference dates back to early 2006, five years ago. 

9. The evidence, which was quite extensive, that I considered, was in fact reports of psychiatrists, a report writer who was a well-qualified psychologist, and the evidence of the parties.  I am not minded to make such a dramatic change on an interim basis when all the appeal books have been prepared and the matter is set down for hearing before the Full Court.  The orders can stay as they are.  If the Full Court proposes to take any action, it is within their jurisdiction to do so.

10. I have also had regard to the affidavit of Diana Falcomer filed on 28 January 2011 and the report of Ms E of 19 January 2011.  It appears that the last visit with Ms E, a psychologist, in practice in northern New South Wales, by the mother was, I think, on 24 June last year.  They were counselling sessions where cognitive behaviour therapy techniques would normally have been commenced.  She observes:

    “This was difficult, as the sessions were used by the client for talking only.  Three further appointments were made.  Two, the client did not attend appointment without counselling, and one was cancelled.” 

11. The referral was for counselling for symptoms related to depression and chronic back pain.  In the first session, 11 March 2010, which was only a month after the trial of this matter, a depression anxiety stress scale was used for assessment of the variables, and it indicated severe depression and moderate levels of anxiety and stress.

12. In all of the circumstances I am not minded to accede to the mother’s application, and I will dismiss the application filed on 21 October 2010 and the application filed by leave on today’s date.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 31 January 2011.

Associate: 

Date:  31 January 2011