Newberry and Newberry

[2014] FamCA 488

FAMILY COURT OF AUSTRALIA

NEWBERRY & NEWBERRY [2014] FamCA 488

FAMILY LAW – PRACTICE AND PROCEEDURE – Proceedings adjourned to a fixed date for hearing and for consideration of whether there has been a change of circumstances in accordance with the principles in Rice & Asplund (1979) FLC 90-725

FAMILY LAW – PRACTICE AND PROCEEDURE – Injunctive Orders – parties restrained from issuing a subpoena to the children’s treating psychologist – appointment of an Independent Children’s Lawyer

Family Law Act (1975)

APPLICANT: Mr Newberry

RESPONDENT: Ms Newberry

FILE NUMBER: BRC 11190 of 2011

DATE DELIVERED: 15 May 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Benjamin J

HEARING DATE: 15 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. The contravention application as set out in the amended document dated 28 April 2014 and the interim application of the father filed 25 March 2014 be adjourned for hearing before a Judge of this Court on 26 August 2014 and IT IS NOTED the question of the Rice & Asplund argument will be raised at that time.

IT IS REQUESTED

1. An Independent Children’s Lawyer be appointed, such Independent Children’s Lawyer to be the same solicitor as previously involved in these proceedings.

2. A family report be obtained and the Family Reporter:

   (a)have access to the documents filed by the parties since the commencement of the contravention proceedings in November 2013;

   (b)have regard to the judgment of Justice Kent; and

   (c)have regard to the social science evidence referred to by His Honour in that judgment.

IT IS NOTED

1. The father has indicated to the Court that the current arrangements will continue subject to the determination of the contravention application.

IT IS FURTHER ORDERED

1. Both parties be restrained from issuing any subpoena to Dr BB, a treating psychologist for the elder children, and leave be given for the Independent Children’s Lawyer and the Family Reporter to speak with Dr BB provided the doctor is informed that if she has concerns about discussions with either one or other of them she should let them know.

2. Leave be given to the parties to apply to the Court in regard to order 5 above.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the Court file.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11190 of 2011

Mr Newberry

Applicant

And

Ms Newberry

Respondent

REASONS FOR JUDGMENT

1. This is an application for a contravention that was listed before me today.  The history of this matter is difficult to say the least.  The issues arise out of the parenting arrangements for the three children of the parties, M, aged seven, L, aged six and R, aged four.  The parties had separated about four years ago although there seems to be an issue as to the date of separation.  They entered into consent orders in June 2012 and final orders were made by Kent J last year after a lengthy defended hearing where there were allegations of sexual impropriety.

2. The orders that his Honour made were substantially that the children live with the father and that the mother spend time with the children.  The mother filed a contravention application in late 2013 and that was amended by a contravention application filed on 28 April 2014.  In support of her contravention application the mother relies on her own affidavit filed April 2014 and a previous affidavit filed November 2013.  She also relies on a series of affidavits by friends and neighbours including affidavits by Mr CC, Ms FF, Ms GG, Mr DD, Ms JJ, Mr NN and Ms CC. 

3. Of those witnesses four were available today; that’s Ms CC, Mr NN and Ms JJ.  Mr HH, who was or is the mother’s letting agent for the property at which she resides, was available by telephone.  The other witnesses were not available. 

4. The father of the children, who is their primary custodian at present, asserts in a very detailed affidavit, comprising of some 101 typescript pages plus annexures, that the mother did not accept the decision of Kent J and has undertaken an approach with the children such as would, if his evidence was accepted, amount to abuse.  Such is his concern, he says, that he has arranged for the elder children to see Dr BB, a child psychologist, and those children have seen her on about six occasions. 

5. He has filed his affidavit and seeks leave to file other material, and says that the circumstances that have arisen since the orders of Kent J are such as would change the whole dynamics of the parenting arrangements.  He says in terms of the contravention applications that he does not dispute the facts which are asserted as contraventions but says that two things ought to be taken into account.  Firstly, that the evidence which the mother was required to adduce in relation to the leasing of her residence is not such as would comply with order 7 made by Kent J.  Secondly he says that because of the behaviour of the mother that there is, in all of the circumstances, a reasonable excuse, and he asserts there are other witnesses who would support him in relation to this, namely Ms KK, Ms LL and Ms OO.

6. The father asks the Court to hear his interim application and to order that an updated report be prepared by Mr J, who has a longitudinal knowledge of the children, albeit limited.  The mother opposes that because she worries about the expertise of this witness, in particular the time that was spent, and secondly wants a fresh look at the children, given the unhappy result, from her perspective, from last year.  Mr J is available to interview the parties in about August this year.  The mother’s case is that she has done nothing wrong apart from endeavouring to maintain her relationship with the children, and that the father in fact has adopted an approach of undermining the relationship between the children and her and the children and their sibling who lives with her.

7. The mother says that she wishes to call evidence as to her character, although that evidence is not as yet available to her.  I am not sure that the Court would want cheer-squad evidence at this stage, bearing in mind the serious issues that each of the parties raise in terms of their impact upon the children.  It is clear that the matter cannot be sensibly heard today.  I endeavoured with the mother to try and narrow what the issues were but her approach was, and perhaps understandably if she is correct, that it was an all or nothing issue. 

8. At the commencement of the hearing today the mother tendered two medical certificates, from Dr PP, both completed on 14 May 2014.  Each of those certificates providing a time that the mother was receiving medical treatment, the first was from 8 April to 10 May and the second was from 10 May to 21 June 2014.  The mother said that she was admitted to hospital for emergency treatment last Friday, and that her health is such that she did not know how long she could manage the matter today, and sought and was granted permission, as would normally be the case in those circumstances, to sit whilst the matter was being considered.

9. It is clear, as I said that the matter could not be determined today.  I have made inquiries of the family consulting section of the Family Court and I am told that the parties could have a family report prepared by the end of July of this year.  I am told that there is a judge available for a full-day hearing of this matter on 26 August 2014.  It seems to me that this is the most efficient course of having the matter determined.  I intend to order a family report.  I intend to stand over the various applications to that date.  I intend to direct that the father continue with the arrangements that are currently in place pending that time. 

10. The father is aware and has been told, no doubt, of the consequences of failure to comply if his lawful excuse is not an adequate lawful excuse, and no doubt a judge will make that determination some time in the future.  I intend to invite the Independent Children’s Lawyer to become involved in this matter again because I am concerned that the decision and the orders made last year have not resolved the conflict. 

11. When the matter comes back before a judge in August it may well be that the judge will consider the rule in Rice & Asplund (1979) FLC 90-725 as to whether it should apply. I will restrain the parties from issuing any subpoenas to Dr BB at this stage. I do not know the nature of the relationship between the children and their psychologist, but it should be preserved at least for the time being and consideration through the Independent Children’s Lawyer and the Family Consultant should be given as to what evidence, if any, is adduced by that doctor.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 15 May 2014

Associate:     

Date:              15 May 2014