KENNY & SLATER

[2015] FCCA 2168

FEDERAL CIRCUIT COURT OF AUSTRALIA

KENNY & SLATER [2015] FCCA 2168

Catchwords:
FAMILY LAW – Interim ex tempore ruling on childrens’ time with parents. 

Legislation:  

Family Law Act 1975, s.60CC

Goode v Goode [2006] FamCA 1346

Applicant: MS KENNY

Respondent: MR SLATER

File Number: MLC 6559 of 2015

Judgment of: Judge Burchardt

Hearing date: 17 July 2015

Date of Last Submission: 17 July 2015

Delivered at: Melbourne

Delivered on: 17 July 2015

REPRESENTATION

Counsel for the Applicant: Ms Stavrakakis

Solicitors for the Applicant: Aboriginal Family Violence Prevention & Legal Service

Counsel for the Respondent: Ms Hollingworth

Solicitors for the Respondent: Joe Mamone Lawyer

Counsel for the Independent Children’s Lawyer: Ms Macgregor

Solicitors for the Independent Children’s Lawyer: Macgregor Solicitors

ORDERS

THE COURT ORDERS THAT:

1. Interim orders are in accordance with the attached Minutes of orders proposed by the mother, consented to by the Independent Children’s Lawyer and placed on the Court file.

2. The matter be adjourned to this Court for mention before Judge Burchardt on 3 February 2015 2016 at 9.30 am.

3. The Mother and Father attend upon a psychiatrist as nominated by the Independent Children’s Lawyer for the purposes of assessment and report AND IT IS REQUESTED that Victoria Legal Aid fund the same.

4. Liberty to apply is granted to the parties. 

THE COURT DIRECTS THAT:

1. The solicitors for the Applicant file a clean, certified, electronic copy of the Minute in Word Format to the chambers of Judge Burchardt by way of email to [email protected] within seven (7) days. 

THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

ENGROSSED MINUTE

THE COURT ORDERS BY CONSENT THAT:

UNTIL FURTHER ORDER:

1. The children X born (omitted) 2009 and Y born (omitted) 2010 live with the mother subject to the mother remaining engaged with (omitted) House.

2. The children spend supervised time with the father as follows:

   (a)at Berry Street, (omitted) for 2 hours per fortnight at times and dates as nominated by the said Berry Street;

   (b)at such other times as may be agreed between the parties with such other times to be supervised. 

3. The mother and father forthwith do all things necessary to attend Berry Street for the purposes of the family commencing supervised time between the father and the children. 

4. The mother and father within 24 hours of being requested by the Independent Children’s Lawyer undertake supervised urine drug testing for the detection of any illicit substances and provide a copy of the results of such testing to the other parties solicitor and the Independent Children’s Lawyer within 48 hours of such results becoming available. 

5. The father shall be restrained by injunction from consuming any illicit substances or alcohol 24 hours prior to and during any time spent with the children or either of them. 

6. The mother be restrained by injunction from consuming any illicit substances whilst the children or either of them are in her care. 

7. The mother and father be restrained by injunction from removing the children or either of them from the State of Victoria.

8. The Independent Children’s Lawyer shall provide a copy of these Orders to the Department of Human Services. 

9. The father forthwith enrol, attend and successfully complete an accredited Anger Management Course or Men’s Behaviour Program and provide a copy of Certificate of Completion to the mother’s solicitor and Independent Children’s Lawyer as soon as practicable. 

10. The mother and father forthwith enrol, attend and successfully complete an accredited Post Separation Parenting course and provide the other parties solicitor and Independent Children’s Lawyer with a copy of the Certificate of Completion as soon as possible. 

11. The mother forthwith enrol, attend and successfully complete a Women’s Anger Management Program called Sea Change through Lifeworks and provide a copy of Certificate of Completion to the Father’s solicitors and the Independent Children’s Lawyer. 

12. The mother and father attend upon a Psychiatrist as nominated by the Independent Children’s Lawyer for the purposes of assessment and report. 

13. The mother and father shall share equally in the cost of the said assessment and report. 

14. It is requested that Victoria Legal Aid funding be extended to facilitate the parties’ payment of the said assessment and report. 

15. All extant applications be otherwise adjourned for mention before Judge Burchardt on 3 February 2016 at 9.30am. 

16. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

17. Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 6559 of 2015

MS KENNY

Applicant

And

MR SLATER

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I am conscious of the time of day and I am indebted to counsel for keeping their submissions within a sensible and economical scale.  I am nonetheless required to follow the pathway indicated by the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 at paragraph [82]. The first matter is to identity the competing proposals of the parties. All the ancillary orders, if I can so describe them – that is to say, all the orders except the live-with and spend-time orders – are in fact agreed. The mother’s proposal is that both children should live with her and spend supervised time with the father at Berry Street, (omitted), in effect as soon as practicable for such time as that Centre would make available. I note that it is asserted by the Independent Children's Lawyer that, as a matter of practical politics, that would mean time would commence in approximately one month’s time if

   
   

   I were to adopt that suggestion. 

2. The father’s proposal is that the daughter, Y, live with him, the son, X, live with the mother and that there be a relatively, in a sense, mirror image arrangement for the mother to spend time with Y.  It is important to remember that the children are young and there is a general theory in family law matters that siblings, unless there are real difficulties between them, ought not be separated if this can be avoided. 

3. Insofar as the issues in dispute are concerned, there are, as Ms W rightly said, just an enormous amount of disputed matters.  There are huge questions as to the extent and nature of family violence.  There are questions as to drug use by both parents.  There are questions as to their past conduct.  It is a litany, I am afraid. 

4. There are some agreed or uncontested relevant facts.  Firstly, the parties commenced their relationship and became parents – particularly so in the case of the mother – at a very young age.  They are still young.  It seems beyond doubt, if nothing else, that the mother has decamped, leaving the children in the father’s care on two occasions, the latter for some months last year.  It is equally clear, however, that the mother did return in late last year to the relationship and it is clear that that has totally broken down.  She is now living in a refuge and has the great advantage of support in that refuge.  The father says he has a good relationship with both children but accepts that today things did not go well with X. 

5. The next matter to be considered is the matters in s.60CC of the Family Law Act 1975 (“the Act”).  Given these circumstances it is not possible to make findings about those matters, save to the extent I shall come to when I deal with Ms W’s report. 

6. The next matter is the presumption as to equal shared parental responsibility. In an interim hearing like this where so many very important matters are vividly in dispute it is immediately apparent that there ought not be such an order at this stage. It then becomes a question of making such orders that are in the childrens’ best interests considering the matters set out in s.60CC of the Act. I do have the benefit, however, of some advice that might be thought to be independent.

7. The report of Ms W traversed the history of the parties and their mutual allegations.  It is noteworthy that the children confirmed family violence to her.  That is a matter of very considerable significance.  Although the father does not agree, I note that it was Ms W’s opinion that X is alienated from the father and that the father made no attempt to greet him.  I appreciate that he disagrees but that’s what Ms W said she observed. 

8. I note that X said the father yells at both children and hits him and Y also revealed to Ms W that she is also yelled at by the mother.  I note that the mother presented, as Ms W put it, well today and was, as it were, more prepared to make undertakings to address the difficulties that had been identified, more prepared to make less judgmental remarks about the father. 

9. Ms W informs me that the father was emotional and extremely blaming of the mother.  I note that his demeanour in court was consistent with that observation and on balance, bearing in mind that both parents plainly have considerable weaknesses and difficulties, Ms W recommended that the children live together and primarily with the mother.  She recommended supervised time with the father at a Contact Centre and various ancillary matters which, to their great credit, both parties have agreed to. 

10. Ms P, the DHHS liaison officer, took me through a history of the various all too numerous referrals to the Department since 2008.  Bearing in mind that X is only six and Y is four, these notifications have been going on effectively right throughout their lives.  These referrals do little credit to either parent according to Ms P.  The first one involved an assessment by the Department that the father had injured the mother and their concern was her refusal to leave him.  The second one in 2011 involved the Department’s satisfaction as to family violence and drug use but was closed because the mother relocated. 

11. Both parents were reported as having limited insight about the effects of violence on children and so the long litany goes on.  I say these things not to be critical or in any way insulting to the parties but simply to observe that they both have their weaknesses and their difficulties.  In an interim hearing of this sort the court engages external professionals or when I say external persons who are not judges of the court but persons who are professionally qualified to give it assistance.  Ms W’s recommendations are clear.  They are supported by the Independent Children’s Lawyer. 

12. In circumstances where both parents must be assessed as having considerable difficulty, like with Ms W, on balance it seems clear to me that I should make the orders that she has essentially proposed and I accept counsel for the mother’s assertion that her minute is entirely consistent with those recommendations.  Accordingly, there will be interim orders in terms of the mother’s proposed minutes which are consented to by the Independent Children’s Lawyer. 

13. The parties agree that the matter should return in February 2016 and I will give a date, 3 February.  Plainly, there is no question whatever of setting a trial date at this stage.  The matter will return on 3 February 2016 at 9.30 am.  I note that there is an order that it be requested that Victoria Legal Aid fund psychiatric reports for both parties and that order will be taken out by the court. 

14. I am also going to grant liberty to apply.  If time at (omitted) does not prove as early as is foreshadowed, I would be looking at some other way for the father to start spending time with the children on a more rapid basis and it may well be that in a case of this order where things have a history of this sort that matters may arise which require urgent attention.  My reasons should also be transcribed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  11 August 2015