Orr & Pinter (No 2)

[2014] FamCA 120

FAMILY COURT OF AUSTRALIA

ORR & PINTER (NO. 2) [2014] FamCA 120

FAMILY LAW – CHILDREN – Interim – Where final orders were made by consent in 2012 which provided that the child live with the father and spend unsupervised time with the mother – Where the mother has made allegation of sexual abuse against the paternal uncle – Where the father seeks to relocate with the child to a rural town  in circumstances where he has already relocated with the child – Where the father seeks a no contact order between the mother and the child.

Family Law Act 1975 (Cth)

APPLICANT: Mr Pinter

RESPONDENT: Ms Orr

INDEPENDENT CHILDREN’S LAWYER: Suthers Lawyers

FILE NUMBER: BRC 4156 of 2009

DATE DELIVERED: 7 March 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 27 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kissick

SOLICITOR FOR THE APPLICANT: Payne Butler Lang

FOR THE RESPONDENT: Ms Orr in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Suthers Lawyers

it is ordered until further order

1. That Clauses 3, 4, 5 and 6 of the Order made 21 February 2012 be discharged.

2. That the child S, born … August 2008, spend supervised time with the mother for a period of no less than two (2) hours on the last Saturday of each month at the Town C Contact Centre (should that Centre be available to accommodate such time).

3. In the event that the Town C Contact Centre is unable to accommodate the time referred to above, then the child shall spend supervised time with the mother for a period of no less than two (2) hours in every four (4) week block on such weekend day and at such time, nominated by the Town C Contact Centre, as that Centre can accommodate.

4. That within seven (7) days of this order the parties register with the Town C Contact Centre and, thereafter, undertake an intake interview on the first available date offered by the Contact Centre.

5. That each party do all other things required of them by the Town C Contact Centre to facilitate the commencement of supervised time between the child and the mother.

6. That the matter be listed for Directions before Registrar Brooks on 12 March 2014 at 10.00 am with leave to the parties to attend by telephone.

NOTATION:

A.The Court requests that the Registrar give all consideration to placing this matter on the call-over list for 17 March 2014 so that trial dates can be allocated as soon as possible.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Orr & Pinter (No. 2) 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 4156 of 2009

Mr Pinter

Applicant

And

Ms Orr

Respondent

REASONS FOR JUDGMENT

1. On 21 February 2012, final orders in this parenting matter were made by consent (“the February 2012 Orders).  These orders provided that the child live with the father and spend unsupervised, graduated time with the mother, increasing to alternate weekends and one week night each fortnight. Both parties were then living in the Town C region.

2. The mother filed an Application for Contravention on 8 November 2012. This Application came before me on 11 November 2013. During the course of that hearing, it became apparent that the child, currently about 5½ years of age, has not spent time - other than for two hours during an observation undertaken by Mr D, (the author of Family Reports in this matter) on 26 August 2103 - or communicated with the mother since late May 2012.

3. This situation has arisen despite the existence of an interim order made by Federal Magistrate Coates (as his Honour then was) on 25 February 2013 (“the February 2013 Order”) which provides that the child spend supervised time with the mother at the Town C Contact Centre (“the Centre”) for periods of up to two hours per week if this could be accommodated by the Centre or, if not, then two hours per fortnight. The February 2013 Order restrains the mother from discussing allegations with the child and restrains the father from leaving the child in the sole care of the paternal uncle. It was at this time that an Independent Children’s Lawyer was appointed.

4. The clear intention of the Court in making the February 2013 Order was that, whatever had been the mother’s behaviour, the child’s best interests were met by ensuring that he spent ongoing time with her, albeit in a supervised setting.

5. The father’s current interim application is that the operative orders be discharged, that he be ‘permitted’ to relocate the child’s residence to Town E and that an order should be made that the child spend no time with the mother.

6. The phraseology of the order sought by the father disguises the reality that, prior to filing the interim application, the father had already moved the child to live in Town E. He did so without notice to the mother.

7. Whilst the February 2012 Order invested the father with sole parental responsibility for the child, the February 2013 Order clearly and unequivocally directed that the child spend supervised time with the mother on no less than one occasion per fortnight in Town C. The father’s unilateral actions in changing the child’s place of residence have clearly made such an arrangement impossible.

8. It is also apparent, from the reported discussion between Mr D and the father in about August 2013, that the father had, by then, determined that the child should not spend any time with the mother. He had also, by then, obtained a permanent position in Town E as a tradesperson. His employment contract is dated 4 September 2013. The child started attending at a day care centre in Town E on 23 September 2013.

9. Mr D commented in his report, dated 15 November 2013 (clearly after the father had already moved with the child to Town E), that a relocation there would be a positive change for the child in that he would be exposed to broader social horizons via interaction with other children in day care. Of course, such interaction could equally have been achieved by placing the child into day care at a centre located in or around Town C.

10. It is abundantly clear, even at an interim hearing and within the confines that the same necessarily imposes upon the Court, that the dispute between the parties about those orders which are in the child’s best interests is intense and long-standing.

11. The order sought by the father on an interim basis would have the effect of completely removing from the child any opportunity at all in the future to have a meaningful relationship with the mother.  Given the interim nature of this proceeding (and the attendant consequence that I am not in a position to reach conclusions about disputed facts and matters) I am not remotely persuaded that it is in the best interests of this not yet six year old child that he be deprived of this opportunity.

12. Similarly, I consider that I am unable to determine whether, in circumstances where the mother previously agreed to an order that the child live primarily with the father, the child’s current best interests are likely to be served by ordering that he live primarily with the mother.

13. I consider that the child’s best interests require that this matter be listed for final hearing as soon as possible. In this way, the parties can ventilate all relevant issues and the Court will be in a position to reach considered conclusions on the evidence before it about those orders which are in the child’s best interests.

14. To facilitate this, I will order that the matter be listed for a Directions hearing before Registrar Brooks at 10.00 am on 12 March 2014 for the purpose of placing the matter onto the call-over list for 17 March 2014 so that dates for trial can be allocated.

15. In the interim period, I consider that the child’s best interests will be met by providing him with an opportunity to spend supervised time with the mother. I consider that such an order will ensure that he is protected from exposure to any inappropriate comments by the mother whilst ensuring that he is able to continue to develop a meaningful relationship with her. I consider that, whilst not in any way sufficient to achieve an optimal outcome, a frequency of supervised time of no less than once every four weeks balances the geographic and practical difficulties of travelling between Town E and Town C (such difficulties being the result of the father’s unilateral decision to relocate to Town E) and the imperative of providing to the child the opportunity for face to face interaction with the mother in a supervised environment.

16. The father seeks, on an interim basis, that Clause 10 of the February 2012 Order (which requires the provision of information about residential address, contact landline telephone number, the names and addresses of the child’s treating medical or health practitioners and any medical condition, significant health issue or illness suffered by the child) and Clause 11 (by which any school attended by the child is authorised to provide each parent with information about the child) are discharged. He does so on the basis of his contention that communication with the mother has become untenable.

17. I am not persuaded at this time that the child’s best interests require an order to be made in the terms sought by the father. Compliance with Clauses 10 and 11 of the February 2012 Consent Order will require very limited interaction between the parents. I consider it is in the child’s best interests that the parties exchange the information required by those Clauses – noting as I do that the father did not provide to the mother details of his residence and other contact details when he moved the child to live in Town E last year.

18. The father also seeks a discharge of Clause 4 of the February 2013 Order which restrains him from leaving the child in the sole care of the paternal uncle. I am not persuaded, on the evidence before me, that there is any change to the circumstances which existed at the time the February 2013 Order was made. I consider that I am unable, as a result of the interim nature of the proceedings, to determine whether it is in the child’s best interests that the restraint imposed by Federal Magistrate Coates should be removed. This issue can clearly be considered at a final hearing of the matter and is another reason why such a hearing should take place as soon as possible.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 7 March 2014.

Associate:     

Date:              7 March 2014