Pearce and Cole

[2009] FamCA 88

FAMILY COURT OF AUSTRALIA

PEARCE & COLE [2009] FamCA 88

FAMILY LAW – CHILDREN – With whom a child spends time – Interim orders – Travel 100 km – Supervision – Best interests of child – Adjournment

Family Law Act 1975 (Cth)

APPLICANT: Mr Pearce

RESPONDENT: Ms Cole

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 13158 of 2007

DATE DELIVERED: 11 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 11 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR TESTART

SOLICITOR FOR THE APPLICANT: STELLA STUTHRIDGE & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR PANNIFEX

SOLICITOR FOR THE RESPONDENT: CAHILLS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR JACKSON

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: HEINZ & PARTNERS

Orders

UNTIL FURTHER ORDER IT IS ORDERED THAT:

1. Paragraph 2 of the orders made by Federal Magistrate Walters on 19 November 2007 be discharged.

2. The child … born … December 2002 (“the child”) live with the mother.

3. The child spend time with her father as follows:

   a.on each Sunday between the hours of 9:00 a.m. and 4:00 p.m. inclusive save that this order is supended on the third Sunday of each calendar month when the child shall remain with her mother;

   b.all such time is to be wholly supervised by the paternal grandmother;

   c.changeover at the commencement and conclusion of the fathers time with the child shall be at the McDonalds store, F;

   d.the father is permitted to spend his time with the child on the first Sunday of each calander month in Bendigo or T, at his election, but he must not travel to and reamin in any other town or locality and on every other Sunday he is spend his time in and around Bendigo with the child and his mother.

4. The father be and remains restrained from:

   a.taking the child to the W Hotel;

   b.bring the child into contact with Mr AS or Ms S Pearce;

   c.consuming alcohol 24 hours prior to and during his time with the child.

5. For the purposes of changeover the mother must punctually deliver the child to the McDonalds store, F, at or before 9:00 a.m. and collect at 4:00 p.m. on the respective Sundays and likewise the father must be punctual in his attendance at all changeovers.

6. If for any genuine medical or other reason the child is unable to spend time on a Sunday with the father then the mother must email or ring the father and convey that information with a full and proper explanation no later than 6:00 p.m. on the Friday preceding the Sunday.

7. If for any reason the child is genuinely ill or unavailable on the Sunday when the father is to spend time in T then the following Sunday be substituted as his make up Sunday for travel to T.

8. The Family Consultant Mr O prepare an updated written report (oral if necessary) of the issues arising out of these orders and their implementation and any other matters in the best interests of the child and he confer with the mother and the father at a date and time to be arranged (and with the child) prior to the further defended hearing.

9. Mr O confer with the child N PEARCE born … August 1991 and prepare a report as to his relationship with the father and the subject child or other matters of interest or concern to the Court surrounding matters in issue in this hearing.

10. The further hearing of all extant applications be listed for mention on Thursday 2nd April 2009 at 9:00 a.m. before Cronin J and both parties be excused from any attendance at Court on that day.

11. Subject to the discretion of Cronin J the matter may be listed for telephone mention by solicitors if appropriate.

12. The further hearing of all defended applications are to be fixed at a date and time by Cronin J for hearing in mid – late April 2009 or the next available defended hearing date when 4-5 days are available.

13. The extempore reasons for judgment be transcribed and placed upon the Court file and made available to the parties.

14. The observations made by Mr O to the Court (not on oath and without cross examination) be transcribed this day and placed upon the Court file and made available to the parties.

15. An order for costs in favour of Mr O be made for his attendance at Court this day and it be noted that he was in Court or required by the Court for a period of three (3) hours.

16. Within 10 days the father’s solicitors make, file and serve their updated amended orders sought.

17. Within a further ten (10) days the mother’s solicitors make, file and serve any amended response to the father’s orders as updated.

18. The mother and the father be each permitted to file and serve one primary affidavit updating facts and issues, to be filed and served on or before Friday 20 March 2009.

19. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled ‘Parenting orders – obligations, consequences and who can help’ a copy of which is annexed to these orders

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13158 of 2007

MR PEARCE

Applicant

And

MS COLE

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Pearce and Cole is before me in the defended list of cases.  Mr Testart of counsel appears for the father.  Mr Pannifex of counsel appears for the mother.  Mr Jackson of counsel appears on behalf of the appointed independent children's lawyer, Mr Heinz, solicitor.

2. The proceedings between these parents were first issued in the Magistrates Court of Victoria, at Bendigo, on 7 October 2005 and thereafter the proceedings have been heard and determined in the Federal Magistrates Court and have now been transferred to the Family Court. 

3. The child of the relationship is a daughter, born in December 2002.  Pursuant to consent orders made by Walters FM on 19 November 2007 the child lives with her mother and spends time with the father on each Sunday between 10.00 a.m. and 2.00 p.m., which was then extended to 3.00 p.m.  The orders set out the required supervision, the changeover venue, requires that time to be spent in Bendigo and otherwise there are restraining orders to which the parties agreed.

4. I have read and evaluated that order and it is a matter of significance that it was made by consent and no doubt made in the time frame of being interim orders, pending a further, and I am sure that the parties intended to be a more speedy hearing of the ongoing matters in dispute.  The matter lay dormant within the court it would seem for approximately a year and came before a Registrar of this court late last year, at which time the matter was listed for a hearing of two, or up to three days' duration, as a reserve in my list this week.  As it transpired I had a five-day matter listed on Monday, 9 February which concluded yesterday, that facilitated this matter being listed today.

5. The counsel all appearing in this matter have indicated that this is no less than a five-day hearing.  Evidently that estimate of time was given to the Federal Magistrate, but is not noted upon his orders.  When the matter was mentioned before a Registrar of this court in December the hearing estimate was significantly downgraded, but clearly that is both highly inaccurate and does not fit in with the list of professional witnesses who are intended to be called and give evidence in the matter.  I cannot take this matter into next week and the next opportunity that I have for four days or more is in late July of this year.  I have made arrangements with the co-ordinating Judge to endeavour to have this matter listed for an interstate Judge as may be available and determined hereafter.  I will try and facilitate the earliest possible hearing of this matter.

6. The father is applicant and his orders are most conveniently expressed in the second further amended application for final orders, dated 12 November 2008.  In that document, and in very brief summary, he sought an order for equal shared parenting and otherwise for the child to live with the mother, but spend increasing and substantial alternate weekend and holiday time and other periods with him.  Otherwise there are further injunctive and restraining orders sought. 

7. Today Mr Testart, appearing for the father, prepared an updated set of orders which he orally advised the court of and then presented a handwritten copy to the court.  If it is that the father is to further amend, I will allow him ten (10) days to make, file and serve a formal amended application. 

8. The mother's position is clear.  She would have a sole parenting order and she would have the child live with her and have limited and closely scrutinised time spent with the father in the immediate vicinity of her home town of Bendigo.  Otherwise she seeks various restraining orders, protective orders and it is probably her position to record concern for her daughter in respect of any increase in time spent by the father with her. 

9. Very much a significant issue in this case is supervision or the need for supervision of the father's time with the child.  Pursuant to the existing order, that time is now to be supervised by the paternal grandmother and she is in court this day and is a deponent in the case.  She lives near to T, which is the father's home town, and works and spends considerable time at the W Hotel, approximately 20 kilometres from T. 

10. The position of the Independent Children's Lawyer is that they are generally supportive of an increase in time to be spent by the father and some specific relaxation of the injunctive circumstances and supervision.  Their position however is fundamentally that all of the facts and evidence in the case need to be ascertained before they are prepared to give a more absolute recommendation or opinion to the court. 

11. When the matter was listed before me this morning I inquired as to evidence and an estimate of time.  The primary witnesses are the mother and father and counsel's estimated time of cross‑examination, collectively, of each of them was approximately three (3) days.  The other lay witnesses are the grandmother (paternal) and perhaps one other supervisor of the Contact Centre.  More significantly are the professional witnesses in this case.  Mr O of is a Family Consultant.  He has recently completed an updated report, dated 5 January 2009, he has earlier prepared two detailed reports which are in evidence before the court.  He is required for cross‑examination which counsel indicated would be lengthy.

12. Dr J is a registered Psychologist practising out of both Melbourne and Bendigo.  He has prepared a report and opinions which are before the court.  He has obtained an extensive review of the father and also has had involvement in a confidential psychological report prepared as to another child, M, who is a 13-year-old female of the father's earlier marriage.  In his report on the father there are certain recommendations made that counsel indicated would occupy some time.  I have read and balanced his summary and recommendations on page 9 of that report of the father. 

13. Ms L is a registered Psychologist practising in Bendigo and she has also prepared a report, at least somewhat shorter in its content, of the father, that is approximately 14 months past, the report being actually prepared in January and early February 2008.  Again, I have read that report and the recommendations and summary in paragraphs 6 and 7 thereof.

14. Dr K is in private practice as a Clinical and Forensic Psychologist, with certain specialities.  His qualifications and experience are known to the court and are contained within his report.  He prepared a psychological assessment of the mother in his report dated 30 December 2008, and of the father in his report dated 6 October 2006. I was advised that he was required for cross‑examination, though I trust that solicitors immediately turn their mind to the date of this report and whether, and to what extent, they are helpful to the court, with the various timetable and of events that have elapsed.

15. I likewise have read both of those reports, but acknowledge of course there has been no cross‑examination of any of the professional witnesses.  I was struck by the observation of Dr K who highlighted the father as a man who has difficulties in relationships and has had problems with depression within the context of relationships, and also with his past family background.  Likewise, that report is fairly insightful in relation to the past abuse of alcohol and other heart and health problems.  However I could not help but observe the conclusion of Dr K was that:

    “[The father] presents as a man who is not currently suffering from a psychological disorder.  He is also a man who expresses significant commitment to his children and desire to be able to care for them and be part of their lives.  Based on current evaluation with the information available at the time of this evaluation, there is no psychological reason to suggest [the father] should be prevented from being involved in the care of his children”.

16. Again, I emphasise that the date of that report, being almost two and a half years past, may be of limited benefit hereafter.  I understand that funds are tight, both parties are funded by Legal Aid, and there may not be an opportunity, or perhaps a need (upon which I express no view) for an updated report. 

17. The current position in brief summary is that the father lives in T.  His son of his prior marriage, N, now lives with him.  His daughter of his prior marriage, M, lives with her maternal grandmother pursuant to an order of a State court.  Once I determine the obvious, that is that I could not hear this matter, and I also note that counsel for the mother inherited his brief at the last minute and had not been in a position to cross-examine the Family Consultant who the court had proposed to call as the first witness.  There then arose the issue of what, if any, interim orders should be made today.

18. To better understand the interests of the child and the requirement of any interim order, Mr O was in court.  He did not give evidence but did provide information to the court.  As I was not allowing cross‑examination of him for time constraints, his evidence was not given under oath.  He did however enter the witness box so his comments could be recorded and answer various questions that I asked of him, hopefully on a balanced basis.  I have regard to some of this observations, though I certainly balance the fact that they were merely observations given to the court, though based on his particular experience in this case, but he was not on oath and was not cross-examined.

19. Mr Testart on behalf of the father sought interim orders to extend the time and locality of the current orders.  His emphasis was that the current orders have been in place for 14 months.  The father has effectively driven the 100 kilometres between T and Bendigo every Sunday and of course the round trip, being 200 kilometres, there have been some occasions when that time spent was unavailable or frustrated, but I do not explore those issues.  On every occasion the order required his mother to attend with him.  He seeks the opportunity to return the child on some occasions now to T so that she can meet N and become familiar with her step-brother and/or the home environment that the father has in T.

20. The Independent Children's Lawyer warmly supported interim orders being made and an extension of time and relaxation of certain travel and other commitment placed upon the father and because that is the submission made on behalf of the child, I give due and proper weight. 

21. The mother through her counsel opposed any interim order.  Mr Pannifex's position was that this was to be a defended matter, if the matter could not be reached or heard, then the current orders should continue without any change whatsoever and the father should have no increased time with the child and no other relaxed conditions.  The concern of the mother is predominantly directed to proper and meaningful supervision and through her counsel she expressed almost a total lack of respect for and trust in the grandmother to undertake any level of supervision, presumably because she is manipulated by her son and does not stand up or would not stand up to protect the child. 

22. In that context of course the observation the court now makes is that the grandmother was 14 months ago the nominated supervisor and has seemingly done that job without formal complaint, certainly there are no affidavits containing an alleged failure on her part, either to be present or to supervise.  The other concerns of the mother are to retain the orders within Bendigo and under no circumstance to allow the father to drive from the safety of the township of Bendigo. 

23. There was one occasion where by agreement that was relaxed so that the father could take the child to a gymkhana in or surrounding the Bridgewater /Wedderburn area of Victoria.  That incident passed without complaint, as to the events of the day and the safety of the child, though there was some disagreement between the parties as to whether the mother was tricked into agreeing to Bridgewater, when in reality the gymkhana was always to be conducted at Wedderburn, a further 20 kilometres distant.

24. The current orders provided for in paragraph (f) will continue and the child will not be taken to that particular hotel and, as was so much the comment in the submissions of counsel before me, will have no contact with Mr AS, or Ms S Pearce, the father's previous wife. 

25. Ultimately the matter first to be determined is should interim orders be made?  I acknowledge the argument of counsel appearing for the mother who vigorously presented on her behalf that the current orders should simply remain and continue.  I do not agree.  Fourteen months is a very considerable time in the child’s life to have lived under the regime of interim orders that were entered into, for what the parties would have hoped to be, a limited period.  There is no complaint over the specific issues with the child in that time.  That is a matter of importance.

26. Likewise, the content of Mr O’s report is such as to give very real comfort as to the improving relationship of father and daughter.  Indeed many aspects of the report and his observations to the court today highlighted that it was and has developed and is established.  If so, the child’s life must go forward.  She has two parents and she, that is the child, has rights to enjoy, subject to safety and proper supervision, both of her parents. 

27. Supervision is an issue that I will not trespass upon today, but clearly that is at the heart of the ongoing future dispute, and it may well be at some point of time, then that order will be discharged and the father and the child’s relationship will be such as to avoid supervision requirements.  However, I pause from making any finding in that regard without a trial and without more complete evidence.

28. One of the difficulties highlighted by Mr O, and touched upon by counsel for the mother, is that she might simply not be able to cope with or deal with any extension of these orders.  That is a matter of importance, though it is very much for the mother to handle and Mr O has touched upon counselling arrangements for her benefit if required.  One would hope they are not required.  The reality of any orders I make today will not involve any considerable extension of time on a Sunday.  The current orders are 10.00 a.m. until 3.00 p.m., though in reality the parties have adopted a timetable or 10.30 a.m. until 2.30 p.m., inclusive. 

1. I propose, in the interests of the child, to vary the current orders.  I will change the time to that of a 9.00 a.m. commencement and a 4.00 p.m. conclusion.  One aspect of this case that I raised with counsel is the mother has no Sunday to herself.  My view of reading the material and in the context of all the father's travel, is that it would be appropriate for the child to have a weekend without time spent with the father so she can be with the mother.  I propose that on every third Sunday there will be a suspension of all time spent. 

2. The more significant issue is concerned with both supervision and the location of contact time.  I am not going to interfere with the supervision requirements.  I use these brief extempore reasons to enforce upon the grandmother, who is in court today, that she has an absolute responsibility to be diligent and active, and if necessary to act against the wishes of her son.  She will be judged by her actions and ultimately the child’s role with the Pearce family will be judged by the acute level of supervision required of the grandmother. 

3. I will permit the child to travel to T on the first Sunday of each month.  In reality if this case is heard in April, that may likely be only two occasions, being March and April.  I will make the orders on an ongoing basis and they can be reviewed and changed by any other judge.  Very, very strictly the child is to go nowhere else but T, is not to go to any surrounding town and is to have no contact with the persons Mr AS or Ms S Pearce.  They are wholly excluded from her circle of contact and the father need understand that a breach of that might simply end any relationship with his daughter.  Very simple, very blunt, because it would show that he really does have no concern or understanding of either the mother, or what might be very genuine concerns.

4. The changeover will remain at the McDonalds store and the mother must punctually deliver by 9.00 a.m. and collect from that store at 4.00 p.m.  I just include in these brief extempore comments the requirement for the mother to positively and meaningfully encourage the time spent and deliver the child in a proper frame of mind, properly attired and ready to go, with no dark stories.  That is a simple reality of what a mother must do here.  The framework for my consideration of these orders is what is in the best interests of the child and if time is to be spent, it must be enjoyable.

5. I have had due and proper regard to the operative sections of the Family Law Act in this regard. I have acted in what I regard to be the best interest of the child pursuant to the primary and additional requirements of section 60CC. In particular, I highlight that this is an interim order made without hearing the parties or cross‑examination and on the briefest of submissions, but upon a reading of the whole of the file.

6. I will have these reasons transcribed and placed upon the court file.  I will have the observations of Mr O made earlier this afternoon transcribed and placed upon the court file, and copies provided to all parties. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: