Norse and Howie

[2009] FamCA 1228

FAMILY COURT OF AUSTRALIA

NORSE & HOWIE [2009] FamCA 1228

FAMILY LAW – CHILDREN – Aboriginality – what time child spends with maternal grandmother

APPLICANT: Mr Norse

RESPONDENT: Ms Howie

INDEPENDENT CHILDREN’S LAWYER: Karen Tydeman

FILE NUMBER: ADC 1741 of 2007

DATE DELIVERED: 9 June 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 9 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Scales & Partners

COUNSEL FOR THE RESPONDENT: Mr Forth

SOLICITOR FOR THE RESPONDENT: Mark Forth & Associates

COUNSEL FOR THE INDEPENDENT LAWYER: Mr Childs

SOLICITOR FOR THE INDEPENDENT LAWYER: Karen Tydeman (Legal Services)

Orders

1. That pursuant to s 11F of the Family Law Act 1975 the parties, namely the father and the maternal grandmother attend upon a family consultant at a time to be arranged by the family consultant to discuss the issues in this case, in particular the question of the child spending time with the maternal grandmother.

2. That by 4:00pm on 28 August 2009 the father file and serve his affidavit of evidence in chief.

3. That by 4:00pm on 28 August 2009 the maternal grandmother file and serve her affidavit of evidence in chief.

4. That by 4:00pm on 3 August 2009 the maternal grandmother file and serve an Amended Response.

5. That by 4:00pm on 28 August 2009 the father file and serve an affidavit of Mr P annexing all of his reports and relevant correspondence.

6. That this case be adjourned part heard to a continuation hearing at 9:30am on 16 September 2009.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1741 of 2007

MR NORSE

Applicant

And

MS HOWIE

Respondent

EX TEMPORE REASONS

1. Can I just perhaps start these remarks by saying that I have now conducted the first day of the trial.  The issues are difficult, but one can always be hopeful that matters can resolve on the first day of the trial. This is not one of those cases though.  Fortunately, out of the discussion, there may be a way forward, depending upon what Mr P comes back to the Independent Children’s Lawyer with. 

2. I am pleased that at least some of the issues that seemed to be outstanding have been put to bed and particularly there is no longer a dispute as to where the child should live, but rather the issue is whether the child is to spend time, or not, with his grandmother. 

3. We now know that the father has no objection to and, indeed, is supportive of the child being exposed to and learning of his Aboriginal culture. I know that that has been an issue for the grandmother. From her point of view, that process cannot start until the first issue is determined, namely, whether the child can see his grandmother, because the child’s exposure to his Aboriginality will primarily stem from his grandmother’s involvement. However, the elder who Mr F spoke to mentioned that there were other avenues to expose the child to his culture, and, the father was aware of those avenues. Indeed that does not need to await the outcome of this case, and I would expect the father to pursue them in any event.

4. In relation then to the dispute as to whether the child should spend time with his grandmother, there are a number of complicating issues there, not the least of which is that the child has been having long term therapy with Mr P, and Mr P needs to outline how that therapy is to progress into the future, and hopefully, and importantly, how it would involve the grandmother.

5. At the moment, the grandmother is – and I have used this phrase before – out in the cold.  Whose fault that is, or what the problem is, is going to obviously be the subject of evidence before me, but that is the unfortunate fact at the moment and that is the pressure on resolving this case as expeditiously as it can be.  That is why I wanted to try and establish some dialogue with the parties today, and in that context, I have raised the involvement of a Family Consultant to speak to the parties so that a dialogue might start between the father and the grandmother about the child and his future.

6. I want both parties to be receptive to that occurring. I am going to order it and I want both parties to approach that and undertake that in the spirit that has been discussed today, namely, thinking only of the child’s future and his best interests.  I confirm that I am not looking for a report from the Family Consultant, and it will just involve a conference.

7. To return to Mr P for the moment.  I have indicated certain areas that I would like some input from Mr P, and Mr Childs is going to take that on board and have his instructor make some further inquiries of Mr P.  Primarily I want to hear if Mr P has a comment to make about any reaction, adverse or otherwise, that he has observed with the child following the interviews that took place with Mr F on 1 May 2005 and, particularly, the observed interaction that took place on that day between the grandmother and the child.

8. The father has frankly said to me that the child was a bit rattled initially, but there has been no more concerns that he has had with any impact, adverse or otherwise, from that occasion.  Hopefully, Mr P will have the same view, but if not, I obviously need to know about that. As I have said during the course of today, for my part at least, subject to what Mr P says, that may provide a window of opportunity for this case to move forward. 

9. I also would like to know generally how Mr P sees the progress of the therapy and, to repeat, I would like to know of Mr P’s plans for the therapy in the future. One of the very real issues in this case is whether it can be decided by me whilst the therapy is proceeding.  At this stage, everyone is keen to have the matter finalised in this court, and I am certainly in favour of that, but I just add the rider that obviously that may be subject to the progress of the therapy and that is why it is important to have that input from Mr P.

10. Next, it has not been raised necessarily as an issue today, but it has in the past, and that is the diagnosis of the condition that the child is suffering from.  There was an assessment done by a multi-disciplinary team at D Medical Centre earlier this year.  It has been said that no one has really seen any formal outcome of that assessment, but apparently there is a letter or a report which certainly the father has received, and he is going to make that available to the Independent Children’s Lawyer and the grandmother’s solicitor.

11. If there needs to be any further investigations about that, then obviously, the Independent Children’s Lawyer or Mr Forth will make the appropriate application. There may be the need to issue a subpoena, for example. However, I am not going to make any order about that yet, and it is noted on the transcript what I have said about the father making that letter or report available.

12. I propose to list this matter for a continuation hearing in September.  I also propose to make an order for the filing of affidavits – at least the affidavits of the parties – by the end of August, and in that regard, the current state of play with witnesses is that only the parties will give evidence.  I am not convinced that that is necessary, but I have not closed the door on that.  Outside of that, there are the experts. There will obviously be the need to call Mr P, and I note that Ms Lewis informed me earlier in the piece that it is proposed that there be an affidavit filed which will bring together all Mr P’s reports and correspondence.  We have the report of Mr F and he will be an essential witness, but there is nothing further that needs to be done in relation to that.  Next, Mr Forth has properly flagged that there may need to be another witness as a result of sighting the report flowing from the assessment, that is, the multi-disciplinary assessment that was done at D Medical Centre, but that is for the future.  There is ample time, unfortunately, in this case to address the need for further witnesses and the need for subpoenas at the continuation hearing or, indeed, if something turns out to be more urgent than that, a directions hearing can be arranged administratively through my associate, given this matter is obviously in my docket. 

I certify that the preceding 12 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 9 June 2009.

Associate