Licha & Wunscher (No. 2)

[2007] FamCA 1016

FAMILY COURT OF AUSTRALIA

LICHA & WUNSCHER (No) 2 [2007] FamCA 1016

FAMILY LAW – CHILDREN – Brief adjournment of parenting case – child to spend time with father on a continuing basis pending adjourned date – child assessed to be at risk of physical or emotional harm if left in the care of the mother in the meantime – evidence of risk to be tested on the adjournment.

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422

APPLICANT: Mr Licha

RESPONDENT: Ms Wunscher

INDEPENDENT CHILDREN’S LAWYER: Septimus Jones & Lee

FILE NUMBER: MLF 6928 of 2003

DATE DELIVERED: 30 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 30 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Lopes

SOLICITOR FOR THE RESPONDENT: Westminster Lawyers

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr P.A. Marchetti

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Septimus Jones & Lee

Orders

1. That the further hearing of the father's form 1 application filed on 29 August 2007 be adjourned to 10am on Tuesday, 4 September 2007, before me for a determination of the competing interim applications being:-

   (a)the application of the father filed 29 August 2007 that …, born … August 1999, live with him and spend time on a supervised basis with the mother; and

   (b)the orders sought by the mother in terms of Exhibit “M3” on 30 August 2007.

2. That between now and 6pm on Tuesday, 4 September 2007 the child spend time with the father on a continuing basis, subject to further order of the court.

3. That the father be permitted to sign the child out of the child-minding centre immediately upon the court rising this afternoon.

4. That the mother cause a member of her family (but not herself) to deliver to the father at his home at … at 8 pm this evening the child’s school requisites, including any necessary uniforms which would be used between now and Tuesday together with any school equipment other clothing or things which, in the opinion of the mother, the child ought to have between now and 6 pm on Tuesday.  For the purpose of delivery, the member of the mother's family notify the father that they has arrived at the outside of the father’s home by calling the father by mobile telephone and refrain from knocking on the door of the father's home. 

5. That the father be in a position to return all uniforms, school requisites, equipment, clothing and things which the mother causes to be delivered pursuant to the preceding paragraph to the mother in good order and repair at such time as the child may be returned to the mother.

6. That the father, in his absolute discretion, may send the child to her school on Friday, Monday and Tuesday before the hearing or retain the child at home.

7. Until the adjourned date the mother be and is hereby restrained by herself, her servants or agents from approaching within 50 metres of the child's school or from contacting or communicating with the child.

8. That the mother and father each file and serve any further affidavit material upon which they rely in relation to a determination of issues of interim living arrangements and time could be spent by the child with each party by 5 pm on Friday, 31 August 2007. 

9. On the interim hearing the independent children's lawyer take all reasonable steps to ensure that Dr R, psychiatrist, is available for cross‑examination personally or, if he is not available personally, by telephone.

10. At the interim hearing I will permit limited cross‑examination of Ms W by each party to the proceedings who is present and participating and thereafter each party will be confined to submissions restricted to 30 minutes each, subject to further order of the court. 

11. I order that the evidence given by Ms W this afternoon be transcribed and that when it is transcribed, a copy be made available to the parties to the proceedings. 

12. My reasons for judgment given this afternoon be transcribed and when transcribed, a copy be made available to the parties.

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Licha & Wunscher (No 2).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6928 of 2003

MR LICHA

Applicant

And

WUNSCHER

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. I have made orders, the effect of which is that the child will spend time with the father between now and next Tuesday, when there will be an interim hearing in relation to a change in parenting arrangements in the terms of the father's application before the court and in the terms of the orders sought by the mother in Exhibit “M3” or any other response that the mother chooses to file and serve prior to that date. 

2. I have had the benefit of hearing evidence from Ms W, family consultant, who has seen the mother, the father, the child, and the father's partner today.  I do not repeat that evidence, everyone was in court to hear it and I have ordered that it be transcribed.  Ms W is very concerned about the mother and, in particular, what impact the mother’s behaviour could have on the child between now and next week.  

3. On the adjourned date, next Tuesday, each party and the independent children's lawyer will have an opportunity to cross‑examine Ms W.  I am conscious that Ms W’s evidence is untested.  However, until such time as it can be tested I am going to act in accordance with her recommendations.  Absent further evidence, her assessments and recommendations seem soundly based. 

4. Of course, in interim parenting proceedings such as this the court must apply Part VII of the Family Law Act 1975 as amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006, following the legislative pathway as set out by the Full court in Goode & Goode[1], a decision of Bryant CJ, Finn and Boland JJ, delivered on 15 December 2006.  It acknowledged that the procedure for making interim parenting orders will be an abridged process where the scope of the enquiry is “significantly curtailed” compared to the ultimate hearing.  It said (at paragraph 68):-

   “…where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.”

   [1] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422

5. The Full Court then noted (at paragraph 72) that:-

   “…it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practical.” 

6. As to status quo, it continued:-

   “…where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the acre arrangements for the child.” 

7. The comments of the Full Court in Goode’s case endorse the approach that, absent protective concerns about the child, any interim parenting decision should be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).

8. The decision that I have made today is contrary to the status quo, albeit for the short period until next Tuesday.  Counsel for the independent children’s lawyer gave me an extensive history yesterday with which the parties did not take issue to any significant extent.  The parents separated when the child was two or three years old.  Since that time she has resided with the mother and had limited time with the father and, for some periods, not seen the father at all. 

   
   

   I have ordered that the child spend time with the father on a continuing basis because I have significant protective concerns about the mother’s ability to care for the child even in the short period between now and Tuesday.  Those protective concerns are mentioned by Ms W in her evidence which, until subjected to cross examination which will occur next Tuesday, I am prepared to accept.  

9. Ms W’s concerns include that the mother may inflict physical harm to herself and/or the child or act in an emotionally harmful way toward the child even if the child is returned to the mother’s care for a short time.  Ms W’s assessment of the mother’s demeanour in court accorded with my own preliminary assessment of the mother.  Whereas today I read out to Ms W the mother’s comments from the transcript of yesterday, I am compelled to record that the transcript does not capture sufficiently the disturbing delivery of the mother’s comments. 

10. The overwhelming consideration must be the emotional and physical safety of the child between now and next Tuesday. 

11. The evidence of the family consultant Ms W is that after observing the mother in court yesterday she made a notification to the Department of Human Services that the child was at risk of physical and emotional harm in the care of the mother.  This is fully traversed in Ms W’s evidence as is the fact that, in the event that the child went home with the mother tonight, Ms W would feel compelled to make another notification to the Department of Human Services based on the child being exposed to risk of physical and emotional harm in the mother’s care.  Ms W is aware, as am I, that the mother resides with her brother and her elderly mother. 

12. In the circumstances I see that there is no alternative but to act in a conservative way which will see the child protected over the weekend and until the next hearing.  My orders coincide with the recommendations of the independent children’s lawyer. 

13. Initially, the mother sought a much longer adjournment, but it is fair to say that was premised on the child remaining primarily living in her household.  When it was apparent that I would accede to the father’s application for the temporary period of up to next week, she sought that the matter be adjourned until only Monday. 

14. I should record however, that Mr Lopes primary application was to have the matter adjourned for six or eight weeks during which time he would prepare further affidavit material for the mother.  I do not accept that Mr Lopes needs one or two months to prepare affidavit material.  I already have the mother’s affidavit filed 22 August 2007 which was prepared by the mother.  Even if

    
    

    Mr Lopes wants to add significantly to that evidence, he is a solicitor at a firm that (he says) does a significant amount of family law work.  He says that he is familiar with this jurisdiction.  He says his firm has acted for the wife within the last three weeks in relation to these proceedings for the purpose of obtaining advice from an expert as to how the mother's case ought to be run.  That expert was Mr Tim M and he says that the mother was given that advice.  

15. I do not accept that a solicitor cannot prepare affidavit material within a day or two.  I note that Mr Lopes did not submit that there was anyone from whom he could not get instructions for affidavits within the next 24 hours. 

16. Mr Lopes also submitted that there ought to be psychiatric evidence before the court about the effect of a change of living arrangements on the child.  I agree that that may be of assistance, it is particularly relevant in the context of

    
    

    s 60CC(3)(d).  So, instead of acceding to his application that the matter be adjourned to next Monday, I will adjourn the matter until next Tuesday when the psychiatrist, Dr R is available to come to court.  It is my preference that Dr R attend personally and be cross examined.  If he cannot attend personally, then I will entertain an application that cross examination be conducted by telephone, but my distinct preference is to have him in court where I can observe him directly give evidence and be questioned and tested on it. 

17. The balance of Mr Lopes' submissions were, in summary, that he would like six or eight weeks to afford his client an opportunity to demonstrate that she can comply with orders.  That is not a submission that has merit in the context of this case.  This is a case where it appears that the child's physical or emotional wellbeing is at risk, at least in part, by virtue of the mother’s non-compliance with orders to which she consented in February 2007.  In particular, that she would take the child to see Dr R and that the father would have unsupervised time with the child.  Ms W has expressed concern that the mother has previously agreed to orders, such as those made in February 2007, and then failed to comply with them at the point that the child’s time with the father becomes longer than a few hours on an unsupervised basis.  

    
    

    Ms W’s assessment of the mother today was that the mother still firmly believes that the child should spend no more than a few hours in the care of the father. 

18. It is not clear to me whether the mother says that she will comply with the orders of February 2007 or that she will comply with orders if made in the terms of her application which is Exhibit “W3”.  Even if it is the former, it may well turn out to be too little too late.  But I have an open mind and I will consider the submissions fully on Tuesday, together with the results of cross examination of Ms W and evidence from the psychiatrist inclusive of cross examination. 

19. In the event that any party fails to attend on Tuesday, they should expect that the matter will proceed in their absence. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  4 September 2007