Lisle and Lisle

[2010] FamCA 844

FAMILY COURT OF AUSTRALIA

LISLE & LISLE [2010] FamCA 844

FAMILY LAW – CHILDREN – urgent interim orders – relevant matters in relation to the best interests of the child in part-heard proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Lisle

RESPONDENT: Ms Lisle

INTERVENER: Crown Solicitor’s Office (NSW)

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 31 of 2008

DATE DELIVERED: 20 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Rose

HEARING DATE: 20 September 2010

REPRESENTATION

APPLICANT (IN PERSON):	Mr Lisle
COUNSEL FOR THE RESPONDENT:	Ms I Ryan
SOLICITOR FOR THE RESPONDENT:	Catalyst Legal
INDEPENDENT CHILDREN’S LAWYER:	Ms K Shea, Legal Aid NSW
COUNSEL FOR INTERVENER:	Ms E Lawson
SOLICITOR FOR INTERVENER:	Crown Solicitor’s Office (NSW)

Orders

1. That the youngest child of the father and mother Y born … December 2004 (“the child”) be in the care of the mother UNTIL FURTHER ORDER or 4.15pm 20 September 2010 whichever shall last occur, upon the following terms and conditions:

   (a)The child be collected this afternoon by the maternal grandmother from the school or after school care.

   (b)The child be transported by the maternal grandmother to her home on the basis that the child stay with her overnight and is then taken by the maternal grandmother to her school on Tuesday morning, 21 September 2010.

   (c)The mother may visit the child this evening in accordance with her proposal which is limited to settling the child down before she goes to sleep.

   (d)The mother make herself available immediately to receive guidance in relation to care of the child and aspects of these proceedings as may be considered relevant to be given by the independent children’s lawyer in the presence of the mother’s legal representatives.

2. That until further order neither the father nor the mother communicate with the child directly or indirectly in relation to any aspect of these proceedings.

3. That the proceedings are adjourned to resume at 10.00am, 21 September 2010 for the purpose of receiving the oral evidence of Dr M, and such other evidence as the parties may be given leave to adduce.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC31 of 2008

MR LISLE

Applicant

And

MS LISLE

Respondent

REASONS FOR JUDGMENT

Introduction

1. In relation to these proceedings, in which the parties seek different parenting orders in relation to the two children of the marriage, in particular the youngest child, on 15 June 2010 the matter was set down for hearing on a final basis for a five (5) consecutive days commencing today.

2. On 30 August 2010 the intervener, by the Application in a Case (“the application”) filed on that date, sought urgent ex parte interim orders to the effect that the youngest child be placed in the care of such person as the intervener deemed appropriate on the basis that the intervener had parental responsibility for the child.  In addition, various procedural orders were sought.

3. That application was before me on 7 September 2010.  On the application of the intervener it was adjourned to 13 September 2010.  The independent children’s lawyer appeared on both occasions.  However, there was no appearance by or on behalf of the father or mother in circumstances where the matter proceeded ex parte.  As a consequence, no notice was given by the intervener to the mother or father in relation to that application.

4. On 13 September 2010, on the application of counsel, I made orders sought by the intervener which were of a procedural nature that related to the service upon the parties to take place at 10.00am today of a number of affidavits and a supplementary report by the court‑appointed child expert, Dr M dated 10 September 2010.

5. When the matter was called on this morning the parties were all represented with the exception of the father.  The father has been unrepresented throughout.  The mother was represented by a solicitor and counsel.  The mother had until recently been unrepresented.

6. It was a matter of considerable consternation to me that no affidavits had been filed on behalf of either the mother or father, notwithstanding that a period of three months had been made available for them to do so.

7. So far as the father is concerned, he informed me of his difficulties in the past three weeks.  In addition, the father referred to his attendances upon and engagement in interviews and assessments with PANOC.  However, no explanation was given as to the balance of the three month period for his lack of activity in having any affidavits filed on his behalf.

8. So far as the mother is concerned, I was informed that there was a grant of legal aid made in or about the end of August 2010.  Solicitors were instructed.  A solicitor who was to have the conduct of the matter was overseas and, implicitly, had limited time upon his return to prepare material.  No explanation was given as to the balance of the period from 15 June 2010 until the end of August as to the lack of any affidavit filed by the mother, nor why her legal representatives did not seek an extension of time for the filing of affidavits for the mother.  Indeed, this morning I was informed by counsel that her client would seek to rely upon aged affidavits and an affidavit in reply to any affidavit of the father.  To say that that represented an unsatisfactory approach to the conduct of litigation, especially when such serious issues are raised in these proceedings, is an understatement.

9. Following the service of the affidavit material and report by the intervener, earlier referred, the matter was adjourned to enable the father and mother through her counsel and solicitor to consider the material and be in a position to inform me of what further steps they wished to take in relation to the remainder of the hearing.

10. I should add that on 13 September 2010 I had determined that these proceedings would be heard on an interim basis only in anticipation of the difficulties that would arise by service at 10.00am on the first day of the five day hearing of considerable affidavit material by experts retained or in the employ of the intervener.  It was obvious that the mother, or those representing her, would need time to read the material, obtain instructions and consider the further course that the litigation should follow in the light of that material, including Exhibit 6 which is the supplementary report of Dr M dated 10 September 2010.

11. That course, for an interim hearing, was acceded to by the intervener and the independent children’s lawyer on 13 September 2010.

Issues

1. The intervener pressed for a determination of the application that an urgent interim order be made whereby the care of the youngest child be moved from the mother to the paternal grandparents to take effect today.  The paternal grandparents attended court following the service of a subpoena upon them.

2. Evidence was given by the paternal grandmother reflected in her proof of evidence sworn today which became Exhibit 7.  The paternal grandmother was cross‑examined.  The effect of her evidence is that she is well acquainted with the youngest child and that she and her husband would use their best endeavours to ensure that the child is properly cared for and that she and her husband would follow such directions for the care of the child and restrictions on communication with both or either of the parties as the court may order.

3. I accept the evidence of the paternal grandmother.  The paternal grandmother impressed me as a member of the child’s extended family who was a sincere, warm person who was endeavouring to be frank and helpful in her evidence against a background of difficult issues involving her son (the father in these proceedings) not to mention that the paternal grandmother was required to come to court on short notice.

4. I was informed by counsel for the mother that the child attended school today and that arrangements had been made for her to be in after school care at the school, to be met by the maternal grandmother, with whom it was proposed that she would reside overnight, and that the maternal grandmother would take her to school tomorrow.

5. Counsel for mother also informed me that the mother proposed to travel to the maternal grandmother’s home in order to see the child, settle her down, then leave so that the sole carer of the child overnight would be the maternal grandmother.  There is no evidence before me in relation to the maternal grandmother.  She has not sworn an affidavit in these proceedings.  I was referred to some critical statements about the maternal grandmother made by the mother some two years ago as appears in an earlier document.  Other than that, there was nothing specific in terms of any detriment to her ability as the carer for the child.

Conclusion

1. Counsel for the intervener as well as the independent children’s lawyer, quite properly acknowledged the difficult issues in this matter, particularly the need to balance the risk to the child of her being in further care of the mother due to the mother’s alleged instability and allegations of propensity for abuse, as against the trauma which may be visited upon a very young child in suddenly having her care shifted from the mother and the maternal grandmother to the paternal grandparents.

2. In terms of the foundation for the risk, so far as the mother is concerned, it appears to be largely based upon her acknowledgment of her emotional reactions when feeling low as referred to in a diary entry some five years ago, namely on 12 July 2005, as well as incidents involving the eldest child which took place approximately two years ago.  Those incidents are undoubtedly very worrying.

3. However, the extent to which the mother may react in a similar way with the youngest child is a matter of some conjecture, notwithstanding that the affidavit evidence of one or other of the deponents for the intervener suggests that this is a high probability.  I have given weight to all of those matters, but I am not persuaded on the balance of probabilities that the weight which should be given to them is at such a level that as a matter of urgency, the care of the child should be immediately moved from the mother and/or the maternal grandmother this afternoon until further order.

4. Dr M is due to give oral evidence tomorrow at 10.00am.

5. I am concerned that a number of matters to which Dr M has referred in particular Exhibits 5 and 6 are able to be tested by counsel, particularly counsel for the mother.  Dr M’s report, being Exhibit 6, has in terms of its foundation, to a large extent, the material furnished to him by PANOC and the assessment of the mother’s current mental state “as reflected in her recent interactions with DOCS”.

6. It is obviously important for Dr M to take that material into account.  Nonetheless, as the independent child expert, it may be that the question of assessment of risk and identification of it so far as the mother is concerned needs to await the completion of his oral evidence tomorrow when there may be a more detailed examination of his opinions and views as reflected in both Exhibits 5 and 6.

7. I raised with the independent children’s lawyer the possibility of her being available to provide guidance to the mother and/or paternal grandmother so far as these proceedings are concerned, given her independent position as representing the child against a background of serious allegations having been made, and where the intervener continues to press for interim parenting orders which would have the affect of the child’s care being moved from the mother to the paternal grandparents immediately.

8. The independent children’s lawyer said she was willing to do so.

9. Counsel for the mother informed me that there was no reason to object to such guidance being offered which could take place in their presence at court this afternoon.

10. I also raised with the parties whether there was any submission to be made against the proposition that neither of them communicate directly or indirectly with the child in relation to any aspect of these proceedings.  There was no objection to such an order being made.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered 20 September 2010.

Associate: 

Date:  23 September 2010