Miller and Brass

[2010] FamCA 1169

FAMILY COURT OF AUSTRALIA

MILLER & BRASS [2010] FamCA 1169

FAMILY LAW – CHILDREN – interim orders – where the father has filed an application seeking to have telephone contact with the child – best interests – where the child has experienced difficulties following time with the father – where it in the best interests of the child for there to be a gradual reintroduction of time –orders that the father be permitted to have limited telephone communication with the child

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Miller

RESPONDENT: Ms Brass

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 4695 of 2009

DATE DELIVERED: 9 December 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 9 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms J. Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

Orders

UPON NOTING it is recommended that the father obtain independent professional assistance in relation to his skills in relation to communication with the child S, if possible, bearing in mind the father’s occupation and residence and the father be at liberty to, and is requested to, provide that person with a copy of the CPS report annexed to the Independent Children’s Lawyer’s affidavit of 22 September 2010.

IT IS ORDERED THAT

1. It is directed the Independent Children’s Lawyer send a copy of the Case Outline document to the father at his address for service.

2. Pursuant to Section 62G(2) of the Family Law Act 1975 THAT a Family Consultant provide to the Court a report dealing with the matters relevant to the parenting orders sought by each of the parties and in particular the relationship between the child S born … January 2001 and each of the parties and the benefit of the child spending time with the father as sought and that the report be completed after interviews of each of the parties (and if appropriate the assessment to include observations of the child with the paternal grandparents subject to the paternal grandparents’ wishes) and observed interaction with the child and each of the parties and such observed interaction with the child to be subject to the Family Consultant’s assessment on the day of the appointments UPON NOTING that the Family Consultant be other than Ms A AND UPON NOTING within the next seven [7] days the father is to write to the Case Coordinator to inform the Court of his parents’ address details and contact details so the Court can inform the paternal grandparents about the family assessment order and about arrangements for the interviews.

3. The matter is adjourned to 16 March 2011 at 9.15 am before the Honourable Justice Dawe for further directions.

4. Leave is granted to the father to attend the hearing on 16 March 2011 by telephone link to the landline telephone number which was provided today (being 08 …).

5. I revoke the previous orders made today in relation to the telephone contact.

6. PROVIDED THAT the Child Support as assessed for the child is paid by the father to the Child Support Agency for the months of November and December 2010 by 24 December 2010 then these orders in relation to telephone calls will apply as follows:

   7.1from 3 January 2011 the mother make available to the child S a pre-paid mobile telephone to allow the father to telephone the child S and ensure that from 3 January 2011 the child S have access to that mobile telephone on not less than three evenings each week on the understanding that she is free if she so chooses to telephone the father on his mobile telephone number;

   7.2from the 3 January 2011 the mother to ensure that the child S have the mobile telephone with her on the evenings of Saturday, Sunday and Wednesday each week from 6.00 pm to 6.30 pm (Adelaide time) PROVIDED THAT the father pays for the call to the mobile telephone and PROVIDED THAT the father telephone no more than once each fortnight thereafter.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4695 of 2009

MR MILLER

Applicant

And

MS BRASS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The proceedings concern S, the child of the parties. The child was born in January 2001 and is, therefore, nearly 10 years old. It is of note, however, that proceedings have been on foot in this Court for most of the child’s life and that there have been serious issues in relation to the various criteria set out in section 60CC of the Family Law Act, namely, the need to protect the child from abuse and the benefit to the child of having a meaningful relationship with each of the child’s parents. They are the primary considerations when the Court is determining what is in the best interests of the child which is the paramount consideration. There are obviously other significant factors in relation to this matter under the provisions of section 60CC.

2. Orders have been made from time to time.  The most recent final orders were made by Justice Bell after trial, with his judgment and orders being delivered on 30 September 2008. 

3. Those orders in September 2008 provided for the child to live with the mother who was to have sole parental responsibility.  There were also orders made directing certain counselling and therapy to take place.  The orders concluded with an order that until further order, the father’s time with the child be suspended. 

4. The father has now filed an Initiating Application in which he seeks final orders and interim orders.  By way of final orders, he is seeking to spend time with the child each alternate weekend, and at other times, during the school holidays and on special occasions.  He also sought certain interim orders.

5. The father is now resident in Western Australia and has employment which varies, if not on a day-to-day basis, on a regular basis such that he appears to have no fixed timetable. 

6. The serious issues raised concerning the welfare of the child are apparent from the Child and Parents’ Issues Assessment and the report from the Child Protection Service annexed to the Independent Children’s Lawyer’s recent affidavit filed on 22 September 2010.  It is not possible in the short, ex tempore reasons to set out those significant concerns, however, the CPS report deals with the history of the matter and the attempts that have been made for a reintroduction of the father into the child’s life.  That has not been successful.

7. There are considerable different views about the reasons for that expressed by the mother and father.  There is, however, information contained, in particular, in the CPS report that indicates that on particular occasions in the past, interaction between the child and the father was possible.  Certain proposals are recommended for what could be described as a gradual introduction so that the child can have the benefit of a relationship with the father.  The Court has ordered that there be a Family Consultant’s report prepared but that will take some time.

8. In the meantime, the father proposes, by way of interim order, that the child be given a mobile telephone for which he has already pre-paid.  He asks that the child be at liberty to telephone him when she wants to, or that he be at liberty to telephone her. 

9. The mother is opposed to any interim order of communication between the child and the father, referring to what she alleges would be the disruption caused to the child emotionally and psychologically, and to what the mother alleges would be her serious concerns about the child’s reaction to that possibility.  The father is opposed to there being any fixed time for his phone calls to the child based upon his employment difficulties.

10. The Court must assess what is in the best interests of the child.  Some structure is required bearing in mind, in particular, the report of the psychologist, Ms Z, who has spent considerable time with the child.  I ascertained from her opinion that leaving matters open to change on a frequent basis (and not having any particular structure to the proposed introduction of telephone time between the father and the child) has significant risk of causing more difficulties for the child.  At the same time it may cause more difficulties for the father in his ability to ensure that the child is available at a particular time.

11. The father can be given the choice to telephone on either the Saturday, Sunday or Wednesday between 6.00 pm and 6.30 pm each week, but he only be allowed to use it once a fortnight.  (I limit it to once a fortnight, at this stage, because of the need to ensure that it is a gradual reintroduction which does not put too much stress on the child, S).  This also leaves open the father’s capacity to communicate at a time more likely to be convenient to him because of the range of times available.

12. At this stage, I do not consider it in the child’s best interests for there to be an order that the mother provide the child to spend time with the father on Christmas Day.  The submissions of the Independent Children’s Lawyer’s counsel and the mother made in open Court this afternoon are that there is a possibility that negotiations could take place between the paternal grandparents and the mother, with the assistance of the Independent Children’s Lawyer to ensure that the child has the benefit, if appropriate, of spending time with the paternal grandparents during Christmas Day rather than the father.

13. The Independent Children’s Lawyer and the mother may negotiate with the paternal grandparents with a view to the paternal grandparents spending some time with the child on Christmas Day, enabling the child to receive any gifts from the father through the paternal grandparents on Christmas Day.

14. Having made the orders the father has now indicated that because the mother has not agreed to him seeing the child on Christmas Day, he is refusing to permit his daughter to the use of the mobile phone supplied by him.  The question then arises as to whether the mother is prepared to allow the father to know her landline telephone number for the purposes of communicating with the child.

15. I am leaving the option open to the paternal grandparents to participate in the family assessment.  (There is no requirement, it is something that they can participate in if they so wish). 

16. The reports suggest that it may benefit the child to have an opportunity to renew a relationship with her paternal grandparents.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 9 December 2010.

Associate: 

Date:  22 December 2010