Norse & Tatler

[2008] FamCA 142

FAMILY COURT OF AUSTRALIA

NORSE & TATLER [2008] FamCA 142

FAMILY LAW – CHILDREN – with whom a child communicates – interim proceedings – mother and maternal grandmother seek telephone communication – father concerned child will be upset by mother’s references to face to face contact – significant issues concerning child’s health – reactive attachment disorder – consideration of expert reports and recommendations – importance of child’s ongoing health and development –mother to have telephone contact once per week – mother restrained from discussing proceedings or proposing the child spend time with her – decline to make order for grandmother to communicate with child.

FAMILY LAW – PRACTICE AND PROCEDURE – trial to commence at earliest opportunity.

Goode and Goode (2006) FLC 93-286

Family Law Act 1975 (Cth)

APPLICANT: MR NORSE

RESPONDENT: MS TATLER

INDEPENDENT CHILDREN’S LAWYER: KAREN J. TYDEMAN

OTHER PARTY: MATERNAL GRANDMOTHER

FILE NUMBER: ADC 1741 of 2007

DATE DELIVERED: 21 February 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 21 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Hicks

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms A. Horvat

SOLICITOR FOR THE RESPONDENT: Beck Legal

COUNSEL FOR THE OTHER PARTY: Mr M.A. Boehm

SOLICITOR FOR THE OTHER PARTY: Denise Rieniets and Associates

INDEPENDENT CHILDREN’S COUNSEL: Mr J.G. McGinn

INDEPENDENT CHILDREN’S SOLICITOR: Ms K.J. Tydeman

Orders

1. That the father permit the child … born on … July 1999 to communicate by telephone with the mother every Thursday on the following conditions:

(a)the mother telephone the father’s landline or such other telephone number that he may advise between the hours of 6.00 pm and 7.00 pm;

(b)the mother not discuss these proceedings or any proposal that the child spend time with the mother or the family of the mother during her telephone conversations with the child.

1. That the maternal grandmother’s Application in a Case filed on the 20 September 2007 be dismissed.

1. The Applications for Final Orders are referred to the Docket Registrar to hold a directions hearing with a view to prepare the matter for final hearing as soon as possible.

IT IS NOTED that publication of this judgment under the pseudonym  Norse & Tatler and Anor 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 TATLER

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which comes on before me by way of an interim hearing in relation to proceedings between the mother, father and maternal grandmother of the child. 

2. These current proceedings have been on foot for some time and various documents have been filed.  There is a significant dispute about some of the factual material upon which each of the parties are relying and significant issues concerning the health of the child. 

3. The child is eight years old.  He has spent time in the care of his mother and spent time with his maternal grandmother.  He has now had a considerable period of time residing in the home of his father.

4. The most significant document on the file so far as the interim proceedings are concerned is the document annexed to the affidavit of the independent children's lawyer to which is annexed the report of the psychologist Mr F.  It is a detailed report of some 20 pages, prepared after observing the child with his mother and grandmother and observing the child with his father.  He refers to having perused various documents and having undertaken interviews with the relevant significant persons.  That report is quite strong in its recommendations and relies heavily upon the work and report of the further expert, Mr P, who is providing therapy and treatment for the child.

5. I refer to and take into account the provisions of the Family Law Act, and in particular the decision of Goode v Goode, directing me to take into account various matters when making an interim decision as to what is in the best interests of the child.  It is helpful that Mr F has also referred in his summary and conclusions to the "significant matters".  In particular, he is aware of the need to take into account the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from physical or psychological harm.  In his report he has made certain recommendations, particularly based upon Mr P’s concerns for the child’s ability to benefit from therapy under certain circumstances.

6. This is an interim matter and therefore findings cannot be made as to the truth of the facts upon which the report is based, but on an interim basis it is my view that the best interests of the child require me to place an emphasis upon his ongoing health and development and therefore give serious weight to the recommendations of Mr F and the emphasis he places upon the recommendations of Mr P.  In particular, the report refers to a recommendation that the child not have contact with the mother until, as is recommended by Mr P, “she be introduced into [the child’s] therapeutic program".

7. There is reference in this report to disruption that is alleged to have taken place after the mother and the child speak on the telephone but there is specifically not an indication as to whether the recommendation that the child not have contact with his mother includes the question of telephone calls.

8. I have heard the submissions in relation to the telephone communication.  The mother is seeking telephone communication twice a week.  That is opposed by the father.  During discussions it is conceded that it has been taking place, and the opposition is perhaps not as strong to telephone contact as it is to face‑to‑face contact.

9. I take into account the concerns that the father has about the child being possibly upset by the mother's reference to further face-to-face contact during the telephone calls. 

10. Balancing off the need to consider the maintenance of a relationship between the child and his mother and the concerns of Mr P and Mr F, I am satisfied that it is in the best interests of the child that there be some telephone communication; that that be once a week and that the mother be restrained from discussing the proceedings or any proposals to spend time with the child during those telephone calls.

11. It is also in issue as to whether the trial should take place sooner rather than later.  The mother calls into question the basis of some of Mr F’s conclusions and seeks a trial at the earliest opportunity.  As I have indicated, on an interim basis it is not possible to determine the full extent of any problems that the mother asserts exist in relation to the factual basis of the report nor the conclusions in the report.  Notwithstanding that, there would also seem to be some benefit in allowing the child to undergo further therapy before a final hearing.

12. I am of the opinion that the Court should bring the matter on for consideration, by way of final hearing, at the earliest opportunity.  I will therefore make interim orders in relation to the child.

13. The grandmother is also an applicant in these proceedings and is also seeking some form of telephone communication with the child.  The report of Mr F is not as extensive in relation to the relationship between the grandmother and the child as it is in relation to the parents and the child. 

14. In view of the conclusions of Mr P that the child is being treated for a reactive attachment disorder and that the conclusion is that the condition is extreme, I again consider that whilst the overall conclusions may be, at the end of the trial, that the child should continue to have time with his maternal grandmother, I am not satisfied at this stage that those factors outweigh the need to consider carefully the issues surrounding the child’s mental health. 

15. I therefore err on the side of caution and decline to make an order which provides for the maternal grandmother to have any time spent with the child, on the telephone or otherwise.

16. I note that the docket registrar needs to give consideration to the question of who is the applicant and who is the respondent, and discuss with counsel the procedure to be followed at the trial.  It would seem to me that the issues of the experts - who is calling them and in what order they are giving their evidence - is a fairly significant one for the judge who eventually hears the trial.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  6 March 2008