Knibbs and Knibbs (No 2)

[2010] FamCA 455

FAMILY COURT OF AUSTRALIA

KNIBBS & KNIBBS (NO. 2) [2010] FamCA 455

FAMILY LAW – CHILDREN – Application by independent children’s lawyer to reopen the evidence – Application made after parties had been notified that judgment is ready for delivery – Judgment delivered but orders made as interim rather than final orders pending assessment by the family consultant as to a specific new issue

Family Law Act 1975 (Cth) s69ZR

Marsden & Winch [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383
Rice and Asplund (1979) FLC 90-725

Suell & Suell [2009] FamCA 55

APPLICANT: Ms Knibbs

RESPONDENT: Mr Knibbs

FILE NUMBER: BRC 2169 of 2009

DATE DELIVERED: 28 May 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE:  28 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Meara

SOLICITOR FOR THE APPLICANT: Mark Treherne & Associates

COUNSEL FOR THE RESPONDENT: Mr Selfridge

SOLICITOR FOR THE RESPONDENT: McMillan Kelly & Thomas Lawyers

THE INDEPENDENT CHILDREN’S LAWYER Ms O’Neill
Legal Aid Queensland

ORDERS

IT IS ORDERED UNTIL FURTHER ORDER

Parental responsibility

1. The parties have equal shared parental responsibility for N born … April 1999 and S born… February 2003 (the children) in relation to the major long-term issues concerning them, including their education both current and future, religious and cultural upbringing, health and any changes to their living arrangements that may make it significantly more difficult for them to spend time with the parties or either of them.

2. In the exercise of their equal shared parental responsibility concerning the children in relation to decisions as to any major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions. 

3. If after consultation joint decisions are not able to be made as to an issue or issues the parties jointly are to consult a family law dispute resolution practitioner to assist them to resolve such issue or issues. 

4. The parties each be responsible or the children’s day to day care while the children are with each of them.

Living arrangements and changeovers

1. The children live with each of the parties on the equal time week about basis including in relation to the March/April, June/July and September/October school holiday periods but not the Christmas school holiday periods.

2. In relation to the Christmas school holiday periods the children spend the first half in or commencing in even years and the second half in or commencing in odd years with the mother and the second half in or commencing in even years and the first half in or commencing in odd years with the father, with the first half to commence after school on the last school day of term 4, the second half to commence at 9.00am on the middle day of the Christmas school holiday period or if no middle day at 9.00am on the day following the midpoint and end on the morning of the first school day of the next school term

3. Changeover occur during school terms on Fridays after school at the children’s school, and except as provided in paragraph 6, at all other times at the parties’ homes with the party with whom the children have been spending time to deliver the children to the other party at the commencement of time and that party to deliver the children back at the conclusion of time.  

Special days

1. If the children are not already spending time with the mother on Mother’s Day, they spend time with her on that day from 9am until 5pm.

2. If the children are not already spending time with the father on Father’s Day, they spend time with him on that day from 9am until 5pm.

3. The children spend from 3pm on Christmas Day until 3pm on Boxing Day with the party with whom they are not spending the first half of each of the Christmas school holiday periods.

4. The children (both) spend 2 hours on the birthday of either of the children with the party with whom they are not then spending overnight time, unless a child’s birthday is a changeover day, and if no other period be able to be agreed between the parties the 2 hours be from 4.00pm until 6.00pm.

Telephone communication

1. The parties are to permit the children to have liberal telephone communication with the party with whom the children are not spending time, including on special days. 

Parties’ ability to make other arrangements in writing

1. Despite these orders, the parties may make other arrangements in relation to the children spending time with each of them, provided that such other arrangements are agreed in writing.

Parties’ communication

1. All written communications between the parties concerning the children, including in relation to the parties’ equal shared parental responsibility, be by email or text message and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders.

2. To facilitate such written communication the parties as soon as practicable provide each other with an email address and/or SMS text message service number and give written communication of any change of such within 24 hours of any change.

Information

1. The parties must notify each other as soon as practicable of any serious accident or injury concerning the children or either of them.

2. The parties must notify each other of the names and addresses of any treating medical or health practitioner including any counsellor or psychologist the children attend and any hospital the children attend and authorise such to provide to the other at his/her request and expense any information or reports concerning the children provided that this order is sufficient authorisation to do so.

3. The parties must authorise the children’s school to provide each other at his/her request and expense information concerning the children, copies of school reports concerning the children and circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.

Attendance at the children’s school

1. The parties may attend any school or extra curricular activities usually attended by parents such as parent teacher interviews, concerts, sports days and the like.

Physical discipline

1. The parties must not us physical discipline in relation to the children nor permit any other person to do so. 

Non denigration

1. The parties must not denigrate each other or permit other persons to do so in the presence or hearing of the children.

Adult issues

1. The parties must not discuss adult issues with or in the presence or hearing of the children and use their best endeavours to ensure that other persons do not do so.

Allegations in these proceedings

1. The parties must not raise with the children the substance of the allegations in these proceedings. 

Mr R

1. The parties must ensure that the children do not come into contact with or have any communication with Mr R. 

AND IT IS FURTHER ORDERED

1. The independent children’s lawyer:

   (a)provide a copy of these orders to Mr I, Principal, V State Primary School;

   (b)provide a copy of the reasons for judgment of today and a copy of these orders to the Department of Community Services (Child Safety) in relation to the recent notification by the children’s school.

2. The mother ensure that the children attend upon Mr P the family consultant at Level 3 Child Dispute Services Sir Harry Gibbs Commonwealth Law Courts Building Corner of North Quay and Tank Street Brisbane at 9.00am on Tuesday 1 June 2010 for Mr P to:

   (a)explain to the children these orders concerning their living arrangements; and

   (b)assess:

   i.whether there has been deterioration in N’s presentation since the 2009 interviews;

   ii.whether N appears to be suicidal or suffering from any psychological condition or trauma;

   iii.whether N would benefit by counselling in relation to any matter and if so how often and by whom;

   iv.whether otherwise it would be in the children’s best interests that I make as a final order the restraints made by the Honourable Justice Murphy on 17 July 2009 set out below.

AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER

1. The restraints made by the Honourable Justice Murphy on 17 July 2009 by pars 4(d)-(f) continue namely:

   4.That the parties shall be restrained from and an injunction issue restraining each from:

   …

   (d)Videotaping, or audio taping (including by telephone) the children where any issue relating to allegations of abuse at the hands of the father is referred to or discussed or permitting or encouraging any other person to do so

   (e)Taking the children to any medical practitioner, counsellor or other professional for the purpose of assessments examination or counselling related to the alleged sexual abuse of the children, unless leave has been given by the court to participate in the counselling examination or treatment

   (f)Taking the children for interview by a Departmental Officer at any Department of Communities (Child Safety) Office or by any police officer for the purpose of assessments examination or counselling related to the alleged sexual abuse of the children, unless leave has been given by the court to participate in the interview.

AND IT IS FURTHER ORDERED

1. The independent children’s lawyer’s application in a case filed 27 May 2010 and the continuation of these proceedings be listed for further hearing at 2.15pm on Tuesday 15 June 2010 before the Honourable Justice O’Reilly.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:   BRC 2169 of 2009

MS KNIBBS

Applicant

and

MR KNIBBS

Respondent

REASONS FOR JUDGMENT

Application

1. Yesterday, after the Associate had notified the parties and the independent children’s lawyer that judgment would be given today at 2.15pm, the independent children’s lawyer, with my leave, filed an application in a case and supporting material seeking that:

   (1)the final hearing of the current proceedings be re-opened for the purpose of the independent children’s lawyer adducing further evidence from witnesses namely Mr I and Ms MC.

   (2)in the event that leave is granted the independent children’s lawyer be at liberty to issue subpoenae to give evidence to Mr I and Ms MC.

   (3)in the event that leave is granted, that the independent children’s lawyer is at liberty to issue subpoenae to produce documents to the Department of Communities (Child Safety) and the Department of Education and Training;

   (4)pursuant to section 62G of the Family Law Act 1975 (Cth) (the Act), Mr P be appointed as court expert to prepare a Family Report.

2. By letter sent to the Court on 5 May 2010, the independent children’s lawyer had foreshadowed an application to reopen the case for the purpose of adducing further evidence.  However, it was not filed until yesterday, after the parties were notified that delivery of the judgment would be today.  There is, of course, no criticism of the independent children’s lawyer intended in this regard, Ms O’Neill having explained fully the delay in obtaining an affidavit from the principal of the children’s school, Mr I, which was sworn only yesterday despite much earlier request.

Relevant principles

1. In Suell & Suell [2009] FamCA 55 Murphy J at [7]-[28] carefully considered whether the traditional common law principles applicable to reopening apply in the context of Division 12A hearings of parenting cases. For the purpose of today’s proceedings, I would extract the following as the most critical:

   ·    The granting of leave to reopen is discretionary.  That discretion is guided by the interests of justice.  The essential question is, is the court more able to do justice in the facts and circumstances of the particular case if the application is granted ([9], citations omitted).

   ·    In the case of reopening a parenting trial, it must be borne in mind that at issue in the substantive proceedings is the initial determination of what is in the best interests of the child ([16], citations omitted).

   ·    When account is taken of Division 12A, the factors relevant to the exercise of the discretion include the following:

   o   Is the further evidence likely to affect, in a substantial way, the ultimate finding or findings that would otherwise have been available on the evidence at the hearing?

   o   Recognition of the principle that it is in children’s best interests, and their parents, that parenting litigation be finalised as soon as possible ([27], extract). 

   See also the authorities collected in the written submissions today provided by Ms O’Neill, the independent children’s lawyer.

Section 69ZR

1. In relation to parenting proceedings, sight must not be lost, also, of s69ZR of the Act which provides:

   69ZR Power to make determinations, findings and orders at any stage of proceedings

   (1)If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:

   (a)  make a finding of fact in relation to the proceedings;

   (b)  determine a matter arising out of the proceedings;

   (c)make an order in relation to an issue arising out of the proceedings.

   Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.

   (2)Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.

   …

The new evidence sought to be adduced

1. The independent children’s lawyer relies upon an affidavit by herself and one by Mr I, principal of the V State Primary School attended by the children N born in April 1999 now 11 years and S born in February 2003 now 6 years.  The evidence now sought to be introduced may be summarised as follows:

   (1)Whether recent comments by S to her teachers as to “what Dad did to me” relate to a new or existing allegation of potential sexual abuse so as to have any probative value;

   (2)Whether N is or may be suicidal or suffering other psychiatric or psychological condition and/or would benefit from counselling.

2. The principal matters in the trial, which I conducted over 6 days in February 2010, concerned disclosures by N and S of sexual abuse of them by the father in three waves, namely S in 2006, both children in early 2009 and S in August 2009.

3. The realm generally of sexual abuse disclosures by the children is one which in my view cannot be advanced until my findings in the existing judgment are published and therefore would not lead to the grant of reopening of the case.  If the Department of Community Services (Child Safety), to whom S’s school recently has made a notification, should identify a disclosure of fresh sexual abuse, which on the existing evidence does not seem to me to be the case, then there would be nothing stopping the institution of fresh proceedings on the Rice and Asplund (1979) FLC 90-725 basis. See also Miller & Harrington (2008) FLC 93-383 at [80]-[83] and more recently Marsden & Winch [2009] FamCAFC 152 at [48]-[50] and [56].

4. Further, in relation to N I would refer to the letter 28 April 2010 from the mother’s solicitors to the independent children’s lawyer in particular its reference to N voicing suicidal thoughts; and to the independent children’s lawyer’s letter 5 May 2010 to the solicitors for each of the father and the mother in particular the paragraph referring to Mr I having met with N’s teachers, and that whilst they have not observed suicidal ideation agree that N is sad and not participating in activities he usually enjoys such as sport, he has not been on track in class and is frequently apologetic for being behind in his work, the deterioration being first noticed last year but having increased recently.  I would refer also to Mr I’s response to the independent children’s lawyer’s letter to the school.  However, that does not appear to contain specific reference to the subject matter just mentioned.  The children’s absences in past years and in 2010 are noted in Mr I’s response. 

5. Any suggestion that a child may be suicidal must be treated with urgency.

6. However, as that was not a factual issue the subject of the trial in February, then, although bearing in mind always that the children’s best interests is the paramount consideration, I can see no disadvantage by delivering my judgment today pursuant to s69ZR(1)(a) on the factual issues that I have determined, but rather than making the final orders I had proposed to make, making the same orders as interim orders and then making further interim and procedural orders in relation to N seeing Mr P.

7. Today, I had the advantage of outlining to the independent children’s lawyer and to Counsel what I had in mind, and they have agreed the course I propose. 

8. I have mentioned to the independent children’s lawyer and Counsel that Mr P, fortunately, is available at 9o’clock this Tuesday 1 June 2010.  All going well, a brief note or memorandum should be available by the end of the week, 4 June 2010, and on Tuesday 15 June 2010 I have a gap in my Day 1 matters so that this matter can then be listed back before me at 2.15pm on Tuesday 15 June for consideration of making the interim orders final, or, if not, the next step from there. 

9. I think, in the circumstances, I will not dismiss the independent children’s lawyer’s application.  It can just stay on foot.  It can be adjourned to the same date. 

10. I turn now to the judgment.  In the matter, I determined that the father has not sexually abused the children, and that the children are not at unacceptable risk of sexual or other abuse in the father’s care.  I have determined that the children’s best interests would be met by the parents having equal shared parental responsibility and by living with the mother and the father on the equal time week about basis, with changeover at Fridays after school, that the week about basis continue through March/April, June/July and September/October school holidays but not the Christmas school holidays which we will be first half second half in each year.  I am satisfied, also, that the equal time week about arrangement is reasonably practicable and will make those orders.

11. Paragraph 27 of the orders [the orders originally proposed] is to this effect:

    The independent children’s lawyer arrange for the children to meet with [Mr P], family consultant, to enable him to explain to them these orders concerning their living arrangements.

    RECORDED : NOT TRANSCRIBED

12. The independent children’s lawyer, I had determined, given the history of the matter, ought not be discharged for 12 months. 

13. The orders prefaced at the front of the judgment as final orders, when the signed orders come out, will be prefaced as interim orders, and the matters I have mentioned will be added to them. 

    RECORDED : NOT TRANSCRIBED

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:                 

Date:              7 June 2010