Noels and Zane-Richards and Ors

[2010] FamCA 528

FAMILY COURT OF AUSTRALIA

NOELS & ZANE-RICHARDS AND ORS [2010] FamCA 528

FAMILY LAW – CHILDREN – Review of the decision made by a Judicial Registrar – Interim parenting orders – Children to spend supervised time with the mother and the father pending final hearing

Family Law Act 1975 (Cth)

Parrott & The Public Trustee of New South Wales (1993) 17 Fam LR 785

APPLICANT: Mr Noels

RESPONDENT: Ms Zane-Richardson

FIRST INTERVENOR: Director-General of the Department of Human Services

SECOND INTERVENOR: Mr Richards

INDEPENDENT CHILDREN’S LAWYER: Mr Gonzalez,
Gonzalez & Co

FILE NUMBER: PAC 4078 of 2008

DATE DELIVERED: 18 June 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Justice Austin

HEARING DATE: 18 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Mr Ulbrick

COUNSEL FOR THE FIRST INTERVENOR: Mr Moorhouse

SOLICITOR FOR THE FIRST INTERVENOR: Crown Solicitors Office

COUNSEL FOR THE SECOND INTERVENOR: Not Applicable

SOLICITOR FOR THE SECOND INTERVENOR: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Gonzalez & Co

Orders

1. The mother’s application for adjournment of the father’s Amended Application in a Case filed on 28 April 2010 is refused.

BY CONSENT AND PENDING FURTHER ORDER

1. Orders 2, 3 and 7 to 18 inclusive, made by Judicial Registrar Johnston on 1 April 2010 shall continue to operate.

PENDING FURTHER ORDER, IT IS FURTHER ORDERED

1. Each of the parties shall take all reasonable steps to ensure that the children spend time with the mother:

   a)For two hours each week on Wednesday, as agreed between the Intervenor (Mr Richards) and the mother; and

   b)Each Sunday for a period of six hours, as agreed between the Intervenor (Mr Ricahrds) and the mother.

2. The time spent by the children with the mother pursuant to the preceding order is to be supervised by the Intervenor (Mr Richards).

3. At the direction of Dr V, the parties are to ensure the attendance of themselves and/or the children upon Dr V for the purposes of participation in therapy with a view to achieving restoration of the relationship between the children and the father.

4. For the purpose of implementing the preceding order, the parties shall comply with all directions of Dr V.

5. Each of the parties shall take all reasonable steps to ensure that the children spend time with the father each Saturday, for not less than two hours and not more than four hours, subject to the following conditions:

   a)The children must first complete no less than four counselling sessions with Dr V;

   b)Whether the children thereafter spend time with the father is at the discretion of Dr V;

   c)The duration of time spent by the children with the father is at the discretion of Dr V;

   d)The time spent by the children with the father is to be supervised by a person nominated by him and approved by Dr V; and

   e)The venue of the time spent by the children with the father is at the discretion of Dr V.

BY CONSENT, IT IS FURTHER ORDERED

1. The matter is referred to the Docket Registrar for the purposes of the matter being re-listed before the Court to have a final hearing date allocated and for the making of ancillary procedural orders.

2. Leave is granted to the parties and the Independent Children’s Lawyer to inspect documents produced on subpoena by the Commissioner of New South Wales Police.

3. The Application in a Case filed by the mother on 18 June 2010 is dismissed.

NOTATION

A.The mother intends to issue a fresh Application in a Case, the proposed orders in which will encompass that order contained in the Application in a Case filed on 18 June 2010.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4078  of 2008

MR NOELS

Applicant

And

MS ZANE-RICHARDS

Respondent

And

DIRECTOR-GENERAL OF THE DEPARTMENT OF HUMAN SERVICES

First Intervenor

And

MR RICHARDS

Second Intervenor

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These highly complicated proceedings relate to the two children of the mother, Ms Zane-Richards, and the father, Mr Noels. 

2. The children are R and Z, who are now aged 13 years and 11 years respectively.

3. The proceedings are contested by numerous parties, namely:

   a)The mother, who filed her Initiating Application on 25 August 2008;

   b)The father, who filed his Response on 9 October 2008;

   c)The Director-General of the New South Wales Department of Human Services (“the Department”), who intervened in the proceedings on 9 July 2009 following leave being granted by the Court to do so on or about 9 January 2009;

   d)Mr Richards (“the Intervenor”), the subsequent but now estranged partner of the mother, to whom leave was granted to intervene in the proceedings on 18 March 2010; and

   e)The Independent Children’s Lawyer, appointed on 29 September 2008.

4. The father presently seeks a review of interim parenting orders made by Judicial Registrar Johnston on 1 April 2010.

Background Facts

1. The mother and father were married in 1996. 

2. The eldest child was born in March 1997 and the youngest child was born in September 1998. 

3. There is a dispute between the mother and father over the date of separation, which is presently immaterial.  The parents were divorced on 6 April 2003.

4. Final parenting orders were made by consent between the mother and father on 4 December 2003, which essentially provided for the children to live with the mother and for them to spend time with the father on weekends and during school holidays.  The parents were to share parental responsibility.

5. In April 2008 allegations were raised about the father’s sexual molestation of the youngest child.  The father denies those allegations.

6. On 25 August 2008, the mother commenced these proceedings and filed a Form 4 Notice of Child Abuse or Family Violence, which document comprised the sexual assault allegations, and also allegations of physical abuse of both the mother and the children by the father.  I take it that the father denies all of those allegations.

7. On 26 November 2008, the father also filed a Form 4 Notice of Child Abuse or Family Violence, making allegations of physical violence against the mother.  Similarly, I take it that the mother denies those allegations.

8. During the course of the proceedings the Court has solicited evidence from two experts. Dr B provided a report dated 20 August 2009 and Dr R provided a report dated 15 March 2010.

9. This matter came on for final hearing before the Court on March 2010 but was dealt with on only an interim basis for reasons which are not presently relevant.

10. Although the matter was heard on 24 March 2010, interim orders and the reasons for those orders were not published until 1 April 2010.  Various of those orders made by the Judicial Registrar were consensual.  Some were controversial.

11. The father filed his Application in a Case for review of the Judicial Registrar’s orders on 31 March 2010 and later filed an Amended Application in a Case on 28 April 2010. 

12. Despite the breadth of the dispute, evident from the father’s Amended Application in a Case, the father has commendably narrowed the dispute to three discrete issues:

    1.The extent of time spent by the children with him pending final hearing;

    2.The extent of time spent by the children with the mother pending final hearing; and

    3.If the children are to spend time with the mother, it is agreed that the time should be supervised and the father contests the suitability of the Intervenor as a supervisor.

Adjournment Application

1. The mother sought an adjournment of the hearing.  Only the father opposed that adjournment.  The adjournment application was refused with reasons to follow.  These are those reasons.

2. All parties, including the mother, were on notice from as early as about 31 March 2010, but at least by about 28 April 2010, that the father was re-contesting the orders made by the Judicial Registrar. 

3. On 3 June 2010, the mother’s solicitor sent a facsimile transmission to the Court advising that an adjournment of the hearing, which had been re-listed from 5 July to 18 June 2010, would be sought. 

4. The fax indicated that the other parties were on notice of the intended adjournment application, and that has not been disputed. 

5. The fax furthermore explained the reason for the adjournment application.  A case guardian has been appointed for the mother.  Her solicitor takes instructions from the case guardian on behalf of the mother.  The case guardian departed overseas on 24 May 2010 and is still overseas.  That has precluded the mother’s solicitor from taking instructions since 24 May 2010, but it did not preclude the mother’s solicitor from taking instructions about the mother’s position in respect of the father’s Application in a Case before 24 May 2010, when she had knowledge of the father’s case.  That period was at least one month in duration.  The mother’s solicitor therefore had ample opportunity to secure proper instructions to contest the father’s case, even in the absence of the case guardian at the time of the hearing.

6. The prejudice to the father is palpable and carries greater weight than any prejudice that accrues to the mother.  The orders made on 1 April 2010 suspend the children’s interaction with the father when there is expert evidence before the Court that suggests that there should be interaction between the father and the children.

Evidence

1. As for the evidence adduced on the interim hearing, the father relies upon his affidavit filed on 20 November 2009, the mother relies upon her affidavit filed on 19 October 2009, and the Intervenor relies upon his affidavit filed on 8 March 2010. 

2. The Department requires the Court to read the judgment of the Judicial Registrar, which is said to be permissible pursuant to the imprimatur of the Full Court (see Parrott & The Public Trustee of New South Wales (1993) 17 Fam LR 785 at 788-789). None of the other parties disagreed.

3. All parties and the Independent Children’s Lawyer rely upon the contents of the two expert reports to which I have referred.

4. Because the father has limited the extent of his dispute of the Judicial Registrar’s orders, some of those orders can be confirmed consensually. Those orders are numbered 2, 3 and 7-18 inclusive.  Only orders 4-6 inclusive are now the subject of contest.

5. The Department tendered a Minute of Order (Exhibit 1) setting out the orders proposed, and that Minute was supported by all parties and the Independent Children’s Lawyer, save for the father.

Issue one – time spent with the father

1. All parties, except the father, support the children spending time with the father under certain conditions, namely:

   a)   That it follows the occurrence of numerous counselling sessions between each of the children and the father with Dr V;

   b)     That it occurs on Saturdays, for a minimum period of two hours and for a maximum period of four hours, at the discretion of Dr V;

   c)     That the time be supervised by a person approved by Dr V.

2. The father agrees in all respects save one.  He wants the maximum period of time elevated from four hours to six hours.  His reasoning is confined to his submission that a period of six hours is of sufficient duration to permit him to escort the children to any weekend sporting commitments they may have.

3. I do not accept the father’s proposal for a number of reasons. 

4. The dispute is quite an arid one. It is common ground that the children do not presently play sports on a Saturday.

5. Even if the order stipulated six hours as a maximum, Dr V could unilaterally exercise discretion to curtail the time period to as little as two hours. 

6. The proceedings are likely to be allocated a final hearing towards the end of this year.  The absence of interaction for perhaps the difference between four and six hours per week over the next few months is unlikely to have a material bearing on the relationship between the children and the father. 

7. It is common ground that the children are currently resistant to the idea of their interaction with the father.  In all likelihood the escalation of time spent by the children with the father, through the encouragement of therapy, is likely to be quite slow.

Issue two – time spent with the mother

1. The father relies upon the evidence found within the expert report of Dr B. In his report (at page 21), Dr B offers the following comments:

   …I recommend that the children be placed in the care of the father.  I believe that he is a capable caring parent and I don’t believe that there is an unacceptable risk from him.

   …In order to achieve a move to the father I believe that there would probably need to be a transition of care perhaps over a month.  This is likely to be difficult as the mother is likely to become extremely histrionic and distraught.

   …I recommend that there be a period of three months where the children do not have contact with the mother because of the potential risk of the mother derailing the process.  It is essential that the mother not have any contact with them for a least one month and then telephone contact be supervised on a weekly basis, after that for a limited period of time.  After three months when the children have hopefully settled with the father then I would recommend that contact increase to fortnightly weekend contact with the mother over another month or two.

2. The father also relies upon evidence found within the report of Dr R, where the doctor comments (at page 24):

   …On the basis of the evidence available to me I would consider that [the mother’s] history of significant psychiatric illness, her suicidal behaviour, her diagnosis not only of mood disorder but of Personality Disorder constitutes a cluster of psychiatric conditions that have the potential to very significantly compromise the mental and physical safety of the children relevant in this matter, but also other young children in her care.

3. As learned counsel for the Department ably pointed out, the recommendations of Dr B were made in the context of an anticipated transition of care for the children between the mother and the father.  That has not happened, and will not happen, at least until final hearing, essentially for two reasons:

   a)The unresolved allegations of sexual and physical abuse against the father, which presently remain untested.  The Court must tread warily and move forward on the basis that the father could present an unacceptable risk of abuse to the children.

   b)The children are adolescent and vehemently express their reluctance to any association with the father.  They are each at an age where their views must carry considerable weight.

4. There is little doubt on the available evidence that the children are primarily attached to the mother.  They lived with her predominately until the time of the interim hearing in March 2010.  The risk of emotional harm posed by the mother to the children, comprehensively addressed by both experts, can be attenuated by the imposition of supervision upon the time spent by the children with the mother.  The Court must be alive to that risk, just as the Court is alive to the risk possibly posed by the father.

5. The risk posed by the mother to the children is also ameliorated by other evidence apart from the imposition of supervision. 

6. Order 14 made by the Judicial Registrar on 1 April 2010 restrains the parties from discussing with, or within the hearing of, the children the issues raised in these proceedings or any other proceedings relating to the parties or the children.

7. In addition, the Court is informed, without objection, that the mother has been receptive to the psychiatric treatment that was foreshadowed by the inclusion of Notation 2 within the orders made by the Judicial Registrar.

8. The Independent Children’s Lawyer informs the Court that the children stridently contend that they wish to see more of the mother, not less.

9. For those reasons, I reject the father’s application for either the entire suspension, or at least the curtailment, of the time spent by the children with the mother under supervised conditions.

Issue three – Supervision

1. The father opposes the Intervenor as a suitable supervisor of the time spent by the children with the mother. 

2. The reasons advanced for that opposition are that the Intervenor does not possess the necessary qualifications and is not sufficiently independent.

3. No qualifications are required to constitute a satisfactory supervisor, apart from common sense and integrity.  No submission was made that the Intervenor is devoid of those qualities.  The manner in which he has participated in the proceedings today suggests quite the contrary.

4. There is no evidence of collusion between the Intervenor and the mother.  Although they are former domestic partners, they are estranged from one another and they are separately represented in these proceedings.  I draw the obvious inference that their interests in the proceedings conflict and that there is no alignment between them. I consider the Intervenor to be sufficiently independent and responsible.

5. I do not accept the father’s untested conjecture about the Intervenor’s collusion with the mother over former contested apprehended violence proceedings and parenting proceedings.  As was explained to the father, controversial evidence is of no assistance to the Court in the determination of cases at an interim stage because of the truncated nature of such hearings.

Conclusion

1. In arriving at the conclusions I have just announced, I have borne in mind that the best interests of the children remain the paramount consideration. 

2. I have also assessed the evidence adduced by the parties and the submissions they have made in the context of s 60CC of the Family Law Act, which provision prescribes the criteria which must necessarily be considered in reaching a determination as to what is in the children’s best interests.

3. For those reasons, I make the following orders.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  18 June 2010