Lenswood and Marcus (No 2)

[2010] FamCA 1167

FAMILY COURT OF AUSTRALIA

LENSWOOD & MARCUS (NO. 2) [2010] FamCA 1167

FAMILY LAW – CHILDREN – where the father seeks to spend additional time with the children pending trial – best interests – where it was held that an alteration of the existing arrangements was not in their best interests – orders that the continuation of the current arrangements for time between the father and children continue

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Lenswood

RESPONDENT: Ms Marcus

INDEPENDENT CHILDREN’S LAWYER: Mr Kent

FILE NUMBER: ADC 1015 of 2009

DATE DELIVERED: 24 November 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 24 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Horvat

SOLICITOR FOR THE APPLICANT: Johnston Withers

COUNSEL FOR THE RESPONDENT: Mrs Lindsay

SOLICITOR FOR THE RESPONDENT: Barr Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kent

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

UPON NOTING matter remains listed for trial commencing on Thursday 27 January 2011 before the Honourable Justice Dawe.

Orders

1. Each of the parties and the Independent Children’s Lawyer ensure that Dr Q has available to her immediately upon the filing of the affidavits of evidence in chief of the parties and their witnesses (which include the report of the father’s psychiatrist and the reports from the Children’s Contact Service).

2. The father’s Application in a Case filed on 2 November 2010 is dismissed.

3. IT IS REQUESTED that the Independent Children’s Lawyer indicate to the Children’s Contact Service that the Court requests continuation of the supervised time (at least until the commencement of the trial in these proceedings).

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1015 of 2009

MR LENSWOOD

Applicant

And

MS MARCUS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The material which is likely to be of significance in an updated report is the information which is now available from the Contact Centres in the reports which are on file and updated material from each of the parties.  This includes a full psychiatric report from the father’s psychiatrist, who has been treating the father since about March to September this year.  His letter of 13 October 2010 refers to this treatment.

2. The relevant time limits and the benefit to be obtained from a further report leave me to conclude that it is appropriate for Dr Q to have available to her, prior to her giving evidence, the updated material by way of affidavits of evidence-in-chief of the parties, their witnesses and the Contact Centre’s reports about the supervised time.  I, therefore, do not propose to order Dr Q to prepare an updated report but to direct that each of the parties and the Independent Children’s Lawyer ensure that Dr Q has available to her (immediately upon filing) the copies of the affidavits of evidence-in-chief of the parties and their witnesses.  This includes the report of the father’s psychiatrist and the reports from the children’s Contact Centre but should not be limited to those.

3. The Application in a Case of the father which is before me seeks orders that the father spend unsupervised time with the children, or in the alternative, that he spend three periods of supervised time with the children each week to be supervised by his friend, Mr G, with handover at the Police Station. 

4. The submissions I have heard from counsel for the father today suggest that the father is proposing to continue with his time spent at the Contact Centre, which currently is listed to conclude at 18 December (they occur on each alternate Saturday) and to propose that on the alternate Sunday, being the same weekend, he spends supervised time with the children, supervised at his home by his friend, Mr G.

5. The wife opposes that for various reasons, including the concerns she has about the reaction of the children to time spent with the father away from what is described as the “sympathetic arrangements” at the Contact Centre and concerns about the proposed supervisor not having been interviewed by the Independent Children’s Lawyer. 

6. The Independent Children’s Lawyer, Mr Kent, does not support the change in the arrangements for the children to spend time with the father and proposes that submissions be made to the Contact Centre to extend the time which the father spends with the children at the Contact Centre to cover the period between 18 December and the commencement of the trial in late January. 

7. It is appropriately pointed out that the trial may commence in late January but the decision of the Court may not be available immediately at that time. 

8. There will therefore be a period of time to be considered.  I have weighed up the various submissions and read the affidavit material.  The Court’s primary concern is the best interests of the children.  Indeed, it is the paramount consideration.  The primary considerations of section 60CC are the most significant in this matter.  The Court needs to balance the two primary considerations, namely, the importance of ensuring that the children continue to have a meaningful relationship with each of the parents and the need to protect the children from harm. 

9. The Court has the task ahead to determine the basis of the mother’s concerns and whether there is any foundation for those concerns which would require the ongoing protection of supervision for the father and the children.  That will need to be determined after all of the evidence has been tested. 

10. The problem at the moment, however, is that the mother has no confidence in the proposed supervisor. 

11. I take into account, in particular, the ages of the children in this matter.  C was born in June 2004 and is, therefore, only six and a half.  M was born in March 2006 and is therefore four years old.

12. The Family Consultant’s report also suggests that there may be some delay in development of the children.

13. The significant material before the Court includes the Family Consultant’s report prepared by Dr Q in February this year.  I have been referred to particular portions of that report which highlight the concerns about the interaction of the children and the need to protect the children. 

14. I do not make any findings that those concerns are justified.  On an interim basis it is necessary to err on the side of caution to ensure the ongoing welfare of the children, particularly their emotional and psychological welfare. 

15. It appears from the report that the children have enjoyed their time with the father and speak in loving terms to him during the Contact Centre’s sessions.  It would therefore be in the children’s best interests for those sessions to continue at the Contact Centre.  I request that the Independent Children’s Lawyer indicate to the Contact Centre that the Court requests a continuation of the supervised contact, at least until the commencement of the trial in these proceedings.

16. Weighing carefully the matters before the Court, principally the need for the children to be removed from the stress that they might be exposed to by a change in the arrangements and their mother’s concern about any proposed change to the arrangements, I do not propose to direct there be any alteration in the time spent between the father and the children pending the commencement of the trial other than to request the Independent Children’s Lawyer to request that the Contact Centre continue those arrangements if possible pending the trial. 

17. The orders which are in place make provision for that, in any event.

18. I otherwise dismiss the Application in a Case and Response.  The matter remains listed for trial before me with directions already made for the preparation of the matter and filing of documents. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 24 November 2010.

Associate: 

Date:  22 December 2010