Kitchener and Crowther

[2011] FamCA 975

FAMILY COURT OF AUSTRALIA

KITCHENER & CROWTHER [2011] FamCA 975

FAMILY LAW – CHILDREN – Interim Application by mother to vary parenting orders – allegations of violence – allegations of drug and alcohol abuse – interim order that father spend supervised time with the children – restraining orders

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings to Federal Magistrates Court

Family Law Act 1975 (Cth)

APPLICANT: Ms Kitchener

RESPONDENT: Mr Crowther

FILE NUMBER: HBC 969 of 2009

DATE DELIVERED: 8 December 2011

PLACE DELIVERED: Launceston

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 8 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Y Pagett

SOLICITOR FOR THE APPLICANT: John William Mountford

COUNSEL FOR THE RESPONDENT: Ms R Courtney

SOLICITOR FOR THE RESPONDENT: PWB Lawyers

Orders

UNTIL FURTHER ORDER

1. Order 6 made by the court on 23 December 2010 to provide that any time the father spends with the children B born … 2005 and C born … 2007 (“the children) to be supervised by his step-mother, his father or some other person agreed in writing between the parties.

2. Such supervisor file and serve an affidavit providing an undertaking to the court to properly supervise and to depose that they have read:-

   (a)    the order of 23 December 2010;

   (b)    the affidavits of Ms Kitchener of 21 November 2011 and
   28 November 2011;

   (c)    the affidavit of Mr D filed 21 November 2011;

   (d)    the affidavit of Ms E of 28 November 2011;

   (e)    the affidavit of Ms F of 29 November 2011; and

   (f)    the affidavit of Ms G of 29 November 2011.

   IT IS NOTED

3. The time the children live with the father will be in accordance with the orders of 23 December 2010 or such shorter time as is made available depending upon the availability of a supervisor.

   IT IS FURTHER ORDERED

4. The mother be restrained from informing Ms E directly or indirectly the address and telephone number of the father.

5. Both parties be restrained from being adversely affected by drugs whilst the children or either of them are in their care.

6. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   IT IS DIRECTED

7. The mother shall file and serve all further material upon which she relies on or before 4.00pm on Wednesday 14 December 2011.

8. The father shall file and serve all material upon which he relies on or before 4.00pm on 20 December 2011.

   IT IS REQUESTED

9. The interests, in these proceedings, the interests of the children B born … 2005 and C born … 2007 be independently represented by a lawyer and it is requested that Legal Aid Commission Tasmania arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Hobart.

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

11. Within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

    IT IS FURTHER ORDERED

12. These proceedings be transferred to the Federal Magistrates Court AND IT IS REQUESTED be listed for urgent interim hearing as soon as is practicable.

    IT IS FURTHER DIRECTED

13. A copy of the reasons for these orders be taken out and placed on the court file.

    IT IS CERTIFIED

14. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: HBC 969 of 2009

Ms Kitchener

Applicant

And

Mr Crowther

Respondent

REASONS FOR JUDGMENT

1. The proceedings of Kitchener v Crowther were heard by me on 1, 2, 3 and 26 November 2010 and I made orders on 23 December 2010 with regard to the children B, now aged 6 and C, now aged 4.  The orders provided that the children live with either parent on a significantly substantial time basis.  The orders also provided that the parties were restrained from being adversely affected by alcohol while the children are in their care or supervision and that the parties be restrained from exposing the children to pornography.  Those orders were made a short time ago.

2. On 21 November 2011, the mother filed an application in the Family Court seeking a variation to those orders, including orders that the orders be discharged and that the children live primarily with the mother and there be reduction of the father’s time.  The mother sought a further order that the father be restrained from being adversely affected by alcohol and other drugs.  In support of that application the mother relies on a series of affidavits.  The first was an affidavit of Mr D, much of which seems to be of a hearsay nature, but raises some issues as to the father’s behaviour.

3. The second is an affidavit by the mother repeating what Mr D has told her and some conversations she had with Ms E.  There was another affidavit by the mother where she raises concerns that the father does not have proper accommodation for the children, that he is drinking to excess, consuming Temazepam and that the mother has concerns about the wellbeing of the children.  There was an affidavit by Ms E, with whom the father was living and from whom apparently he has recently separated, where she raises issues about the father’s care of the children, use of drugs, alcohol and some issues of violence.

4. There is an affidavit of a Ms F in relation to some observations she says she has made of the father exposing the children to screaming and shouting, although part of that seems to be hearsay.  There is an affidavit of Ms G in relation to that as well. 

5. The father is represented and although he has not filed any material, his solicitor says that he strenuously denies the allegations made against him.  I, of course, have an obligation to protect the welfare of the children and it seems to me, as Ms Courtney says, it is unhelpful if I simply reduce the time because the children will still be, if these allegations are correct, exposed to the abuse if it is occurring on the material which is set out.

6. What I intend to do is transfer these proceedings back to the Federal Magistrate's Court to be listed for an urgent hearing before a Federal Magistrate.  However in the meantime I intend to make some orders requiring that the father’s time with the children be supervised either by his mother, his father or some other person agreed between the parties.  This is provided that those people have read the orders made by me last year and the affidavit material relied upon by the mother and undertake to the Court to properly supervise the father’s care of the children, in particular that there is proper evidence that he is not affected by drugs or alcohol and that he does not expose the children to pornography and that the children are properly housed.

7. That is not to say that I have formed a view that this is the case.  My task is to put in place arrangements which protect the needs of these children.  I have had regard to my reasons set out last year in terms of the history and the high conflict between these parties and I anticipate that these orders will only be in place for a short period of time until such time as it is determined by a Federal Magistrate on an interim basis.  I understand that Baker FM has disqualified herself from further hearing this matter, so it would need to go before Roberts FM or some other Federal Magistrate.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 8 December 2011.

Associate:

Date:              8 December 2011