KELLY & BRYANT

[2011] FamCA 227

FAMILY COURT OF AUSTRALIA

KELLY & BRYANT [2011] FamCA 227

FAMILY LAW - CHILDREN – supervised contact – interim telephone contact

Family Law Act 1975 (Cth)

APPLICANT: Ms Kelly

RESPONDENT: Mr Bryant

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 7646 of 2010

DATE DELIVERED: 14 March 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 14 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Boyle

SOLICITOR FOR THE APPLICANT: Fox & Staniland

ADVOCATE FOR THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

BY CONSENT IT IS ORDERED

1. That Dr M be appointed the Pt 15 expert to report into issues relating to the welfare of O born … April 2006 and L born … September 2007.

2. That the parties and the Independent Children’s Lawyer (ICL) have leave to file in chambers a Minute related to the terms of Dr M’s appointment as the Court Expert within 14 days.

3. That the mention listed for 21 March 2011 be vacated.

IT IS ORDERED

1. These proceedings are expedited.

2. The parties have leave and are directed to approach the List Clerk for the allocation of a first day Less Adversarial Trial.

3. Not less than 28 days before the first day before the Judge each party shall file and serve a completed parenting questionnaire in the form available from the Family Court of Australia website.

4. No affidavits or witness statements are to be filed by the parties without permission of the Court.

5. Except as provided for by the Rules, no subpoena for production of documents or to give evidence shall be issued by any party without permission of the Court first being obtained subject to these directions.

6. Permission is granted to ICL to issue subpoenas.

7. Any request to issue a subpoena is to be accompanied by a written statement confirming the date and name of the judicial officer who granted permission to issue the subpoena or a letter clearly setting out the reasons why it is necessary to issue the subpoena.

8. Not less than 56 days before the first day before the Judge the applicant shall serve on each other party a chronology of no more than two (2) pages of relevant and important facts.  The chronology is to be served electronically, if possible, and must have provision for each other party to indicate whether they agree or disagree with each entry.

9. Not less than 42 days before the first day before the Judge each other party receiving the chronology from the applicant shall reply, electronically if possible, noting agreement or disagreement to each item and adding to the conclusion of the document any further items of no more than one (1) page which it is contended should be included in the chronology.

10. On receipt of the reply from each of the other parties, the applicant shall note any further agreement or disagreement to any additional entries inserted in the chronology by the other parties and not less than 28 days before the first day before the Judge deliver, electronically if possible, the completed document to the Case Coordinator.

11. Not less than 28 days before the first day before the Judge the parties must exchange and at least two (2) clear business days before the first day before the Judge lodge with the Associate a minute of the orders sought by that party and a list of the proposed witnesses.

12. The oral application made by the respondent father in respect of telephone contact with the children is refused.

13. In the event the father is able to spent time with the children beyond “9.30 am to 11.30 am” he shall give the mother seven (7) days notice.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7646 of 2010

Ms Kelly

Applicant

And

Mr Bryant

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. I am asked to make interim orders which would enable the father and children to speak to each other once a week by telephone.  The father’s oral application is opposed by the mother and it is submitted by the Independent Children’s Lawyer (“ICL”) that his application is premature.

3. The disputed issues in the proceedings relate to allegations of violence, mental health and by each of the parents regarding the other’s alleged manipulation of the children.  A subset of the latter issue relates to allegations the children have been exposed to very unpleasant comments by one parent about the other, which, if true, might even be classified as behaviour which is psychologically or emotionally abusive.  All of these matters, in one way or another, are to be addressed shortly by Dr M.  The proceedings will be expedited.

4. There is provision for the children to see their father, on a supervised basis.  Although he rejects that there is a proper basis for supervision, this is accommodated by him simply to enable him to see the children.

5. There is a likelihood that the current arrangement of two hours a week will be increased to four hours and, with that possibility, be spread over two periods during the week.  The point which flows from that is that the Court can be comfortable that the children will spend time with their father at least weekly and it may well be twice weekly.

6. I am unable to determine today whether supervision of the children’s time with their father is necessary in the long term.

7. I am also unable to determine today whether the allegations made by the mother about the father’s manipulation of the children (through inappropriate remarks made to them or within their hearing), about circumstances of the parties’ separation and in relation to the mother will withstand scrutiny once the evidence is tested.

8. The Court has already determined, on an interim basis, that it is appropriate for the children’s time with their father to be supervised.  If telephone contact between the children and the father was to resume, to be consistent with the existing orders, that too must be supervised.

9. The ICL submitted that telephone contact with the father would potentially cause further dispute between the parents about what took place during these calls.  Counsel for the mother submitted that against the background of the allegations made by the mother, supervision by her at this point, even if it is limited to them speaking with him by telephone, would be inappropriate.  With respect to the submission, I agree.

10. For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 14 March 2011.

Associate:                 

Date:    5 April 2011