Murnane and Kruff

[2018] FamCA 185

FAMILY COURT OF AUSTRALIA

MURNANE & KRUFF [2018] FamCA 185

FAMILY LAW – CHILDREN – Parenting Orders – Variation – Where the Mother contravened existing orders and sought orders for the child’s time with the Father to be supervised – Where proposed orders agreed upon make no change to the existing orders that provide for the child to live with the Mother and to spend time with the Father, save that the child’s time with the Father will be supervised by the Father’s current partner – Where it is in the child’s best interests to maintain the same amount of time that she was having with the Father – Where the Father is not required to attend upon alcohol counselling – Where the Mother is restrained from questioning and recording her questioning of the child – Where the parties are allocated an early trial date.

Family Law Act 1975 (Cth)

APPLICANT: Mr Murnane

RESPONDENT: Ms Kruff

INDEPENDENT CHILDREN’S LAWYER: Damien Carter

FILE NUMBER: BRC 2693 of 2017

DATE DELIVERED: 27 March 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 26 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Baston

SOLICITOR FOR THE APPLICANT: Lynn & Rowland Lawyers

THE RESPONDENT:	In Person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Downes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Mediation
and Family Law

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER

1. That the child’s time with the Father pursuant to Orders 3 and 4 of the Orders dated 28 November 2017, be in the presence of Ms B.

2. That the parents will use a single medical practice for the child (the “Single GP”) who will be, in the absence of further written agreement between the parents, C Medical Centre.

3. That neither parent is permitted to make an appointment for the child with a specialist medical practitioner (any other medical practitioner other than the Single GP) without first consulting the other parent as to the need for the child to attend and as to the other parent’s availability to attend the appointment and each parent is at liberty to attend the appointment or to make a subsequent appointment to attend upon the specialist to obtain specific information save as for a direction by a medical practitioner for only one parent to attend. 

4. That the parents will follow the reasonable recommendations in relation to medical advice given by the Single GP or other medical practitioners the subject of a referral from the Single GP for the child and each parent is authorised, by this Order to obtain any information in relation to the child.

5. That both parents shall advise the other as soon as practicable of any accident, emergency or illness suffered by the child whilst in that parent’s care.

6. That neither parent is permitted to take the child to an appointment with a service provider, including but not limited to an educational consultant, psychologist/social worker or alternative therapies provider without first consulting the other parent and the Independent Children’s Lawyer as to the need for the child to attend and as to the other parent’s availability to attend the appointment and each parent is at liberty to attend the appointment or to make a subsequent appointment to attend upon the service provider to obtain specific information.

7. That neither parent is to engage the child in any other counselling without the other parent’s prior written consent unless recommended to do so by the Single GP.

8. That changeovers shall be at the Aldi Supermarket carpark at the Suburb D shopping centre.

IT IS FURTHER ORDERED

1. That the Mother is restrained and an injunction is issued preventing her from engaging the child in any question and answer sessions and/or recording any such sessions.

2. That the Mother’s oral application for the father to attend “alcohol counselling” is dismissed.

3. That in lieu of the time that the child, F born … 2014, was to be spending with the father each Tuesday pursuant to the Orders of 28 November 2017, she shall spend four hours with the father also in the presence of Ms B from 2:00 pm until 6:00 pm each other Sunday that she is not already spending time with the father pursuant to those orders of 28 November 2017.

4. That the child’s time with the father, to be spent with him in accordance with the Orders of 28 November 2017 as affected by these Orders, shall commence again this coming weekend notwithstanding the fact that it is the Easter holiday weekend.

5. That the Independent Children’s Lawyer has leave to cause the issue of subpoenas for the production of documents directed to: 

   (a)Ms E from G Group;

   (b)H Group;

   (c)G Group;

   (d)Dr J;

   (e)Any day care facility that the child has attended, with the Mother to provide the Independent Children’s Lawyer with a list of all such centres within seven (7) days of the date of this Order;

   and the Independent Children’s Lawyer shall bear in mind the trial dates now being set in this matter when causing these subpoenas to issue with the subpoenas to be issued such that sufficient time is allowed for the recipients of such subpoenas to respond and produce the required documents to the Court in advance of the trial. 

6. That the Independent Children’s Lawyer will provide Mr K with all updated material including affidavit material, applications in a case, subpoena material and Dr L’s report and will inform Mr K that the matter is being listed for trial as a reserve trial in the week commencing Monday, 16 April 2018 and that he should be available for cross-examination at the trial in that week as further directed.

Trial Directions

1. That the matter be listed for trial, as a reserve, in the week commencing Monday, 16 April 2018 with an estimated hearing time of 3-4 days.

2. That leave is granted to the parties to, by 4:00 pm on Friday, 6 April 2018, make file and serve one affidavit of each witness identified as being their witnesses, being as follows:

   For the Applicant Father

   ·The father himself

   ·Ms B (his current partner)

   ·Dr M (potentially – the author of a previous sexual offence risk assessment)

   For the Respondent Mother

   ·The mother herself

   ·The maternal grandmother (by internet conferencing from Europe)

   ·The maternal grandfather (by internet conferencing from Europe)

   ·The maternal aunt (by internet conferencing from Europe)

   ·The maternal uncle (brother-in-law of mother) (by internet conferencing from Europe)

   ·Ms N (mother’s neighbour)

   For the ICL

   ·Mr K, Psychologist, family report writer

   ·Dr L, Psychiatrist, report writer

3. That except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavit, without the leave of the Court.

4. That the Independent Children’s Lawyer shall confer with the parties and prepare an indexed and paginated bundle of documents which are to be tendered into evidence from the documents produced under subpoena, and to file a copy of that bundle with the court, in advance of the trial, and provide one copy of that bundle to each of the parties, in advance of the trial.

5. That by no later than Friday, 13 April 2018 the parties shall make file and serve a Case Outline document containing:

   (a)A list of all affidavits they rely upon;

   (b)A relevant chronology;

   (c)A Minute of the Orders they ask the Court to make;

   (d)A summary of their argument as to why the Court should make the orders they seek;

   (e)A list of any legal authorities they rely upon.

6. That the Respondent mother shall ensure that she makes arrangements in advance of the trial with the Case Co-ordinator so that internet video conferencing may be readily used during the trial for the oral evidence of her overseas witnesses to be heard and their cross-examination facilitated. She shall also make arrangements with the Case-Co-ordinator so that facilities for viewing recorded interviews of the child and of the father by the Queensland Police Service may be able to be watched and so that any audio recordings of conversations between the mother and the child that the mother intends to adduce into evidence may be able to be played as determined by the trial judge.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Murnane & Kruff has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2693 of 2017

Mr Murnane

Applicant

And

Ms Kruff

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I made interim parenting orders in this matter with the consent of the parties on 28 November 2017. Those orders included equal shared parental responsibility for the then three year old girl, the only child of the mother and the father. They also provided for the child to live with the mother and to spend time with her father on a regular basis, starting with short periods of a few hours at a time, increasing to full days from March this year and then to weekends, including Saturday nights, from June this year, before increasing again to more time than that in August this year.

2. On 20 February this year, just before the child’s time with her father was to increase to full days each second weekend, the mother filed an Application in a Case in which she sought orders for the child’s time with the father to be supervised at a children’s contact service.

3. The mother also told the father that even before her Application in a Case was heard and determined she was withholding the child from him in contravention of the existing orders. She said in her affidavit filed in support of her Application in a Case that she was “withholding” the child from spending time with her father because of “suspected sexual abuse, emotional abuse and manipulation of the child”.

On the Hearing day

1. On the day of the hearing of the mother’s Application in a Case, the matter was stood down until midday as the parties had a conciliation conference in their property proceedings scheduled before a Registrar of the Court. That went ahead and the Court was later advised that the parties had resolved their property dispute.

2. When the matter was called on for hearing later in the day, the Court was informed by counsel for the Independent Children’s Lawyer (“the ICL”) that the interim dispute had been “largely resolved” by all three parties and that a draft of proposed orders had been prepared reflecting the terms. Counsel told the Court that there remained only three matters in dispute between the parties.

3. It is those three matters that I have had to decide. The proposed orders otherwise agreed between the parties will all be made. Those include no change to the existing orders that provide for the child to live with the mother and to spend time with her father, save that the child’s time with her father will be supervised by the father’s current partner.

4. The parties, including the ICL, could not agree on the following:

   (i)Whether the mother should be restrained from engaging the three year old child in “any interrogation sessions and/or recording any such sessions”;

   (ii)Whether the father should be ordered to undertake “alcohol counselling” and

   (iii)Given that the father’s partner works during the week, should the time the child is already spending with the father on Tuesday evenings between 4:00 pm and 6:00pm be simply lost to the child because the father’s partner is unavailable to supervise it between those hours or should that time lost be replaced at another time when the father’s partner is available to supervise it.

Listing for trial

1. In the substantive parenting proceedings, the mother seeks final parenting orders allowing her to relocate with the child back to live in her homeland, Europe. The father seeks final parenting orders that the child live with him in O Town. That is where the mother and child also currently live.

2. The ICL has obtained a family report from an experienced psychologist. It was done late last year. He has also obtained a psychiatric assessment of the mother from a psychiatrist.

3. The parties all told me that the matter would be ready for a trial to take place if it was listed in the near future and all were keen to have it listed. I informed them that it could be listed for hearing in the second week of a running list that this Registry is conducting over two weeks in April, just over three weeks away. All the parties agreed that it should be listed for trial during that week.

4. I have established that the matter can be accommodated in that week commencing Monday 16 April, 2018, albeit as a reserve trial. The Court has six trial judges sitting in this Registry that week, including a few visiting judges. There is every expectation that the matter will be able to be reached and heard in that week. Accordingly, I will list it and make appropriate trial directions.

My Determination of the remaining matters in dispute

1. As for the three matters remaining in dispute today, I have determined to order that the child spend the four hours that she would have spent with her father each fortnight on Tuesday evenings that she will now miss as the father’s partner cannot be available during that time, take place instead on the other Sunday afternoon from 2:00 pm to 6:00 pm. The mother submitted that was not appropriate as the father is already having every second weekend with the child and that giving her this make-up time with him on the other Sunday would impact upon her weekends with the mother.

2. The trial will now be only just over three weeks from now. The mother has some casual employment that permits her to spend a lot of time with the child during the week in any event. I consider it in the child’s best interests to maintain the same amount of time that she was having with the father under the previous orders consented to by the parties in November last year, at least for the next three weeks. This is particularly so in circumstances where the mother unilaterally stopped the child’s time with the father a few weeks ago. That the mother will lose a couple of Sunday afternoons with the child between now and when the matter is finalised is not too big a sacrifice for the child and her, in my judgment.

3. I will not make an order at this point for the father to attend upon some form of counselling in respect of his intake of alcohol. There was some reference at the hearing to a report prepared for the father by a psychologist who was assessing sexual offending risk, in which the psychologist raised the question of the father’s alcohol use. The mother asserts the father has a problematic level of alcohol use that she presumably says compromises his parenting capacities. There is already an order in place restricting the amount of alcohol the father may have in his system when the child is in his care. The mother did not seek any further orders about that in her Application in a Case. She just raised it orally in Court today.

4. As the trial is only three weeks away, and the father does not consider he should be subject to such an order today in circumstances where the mother did not even include such an order in the application she formally made, I will not make such an order today. Whether the father sees fit to present evidence to the judge who hears the trial in this matter dealing with the mother’s allegation that he consumes alcohol to excess is now a matter for him.

5. The father asks for an injunction restraining the mother from engaging the child in any “interrogation sessions and/or recording such sessions”. His application in that respect is supported by the ICL. The mother opposes it.

6. Exhibited to the mother’s affidavit filed in support of her Application in a Case are a number of transcripts of conversations the mother says she has had with the child that she was able to record on a voice recording machine and have transcribed.

7. Those transcripts reveal the mother asking the child questions, not just having a conversation with her. The first one shows the mother asking the child the same question repeatedly several times, even when the child answers it the first time and then subsequently each time she is asked. The questions are directed at the three year old seeking to elicit why she was touching her own genitalia.  The transcript reveals that the mother is clearly not satisfied with the answer and keeps pressing the child for a different answer than the one she gave. Eventually, the mother gets a different answer and then presses for more information, which she also gets.

8. The mother submitted that she needs to be able to continue to record her conversations with the child so that she has proof and “support” for the propositions she puts into evidence in the Court about the things the child says to her.

9. The order the father and the ICL seek is to stop the mother questioning the child with a view to gaining evidence for her case that the father has abused the child, as she is not trained in how to do so in a way that does not contaminate the evidence.

10. I am persuaded that the mother should be restrained from questioning the child about matters pertaining to her time with the father and also from recording her conversations or question and answer sessions with the child. The mother is not trained in the appropriate questioning of a child and to permit her to continue to do so would be to risk unacceptable emotional harm to the child. There is a recording of an interview of the child by police that has been produced pursuant to subpoena by the Queensland Police Service. It is anticipated that will come into evidence. I will order the mother to be restrained from questioning and recording her questioning of the child. I will not use the word “interrogation” as used by the father in the order he seeks.

11. I will make the orders set out at the commencement of these written reasons.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 March 2018.

Associate:

Date:  27 March 2018