Peters and Richards (No 3)

[2013] FamCA 664

FAMILY COURT OF AUSTRALIA

PETERS & RICHARDS (NO 3)

[2013] FamCA 664

FAMILY LAW – APPLICATION IN A CASE – Where Applicant Father seeks orders that a Family Report be prepared – Where Respondent Mother resists the Application – Where Order previously made vacating earlier orders for a report to be prepared – s 62G Family Law Act 1975 (Cth) – Where Applicant Father pleaded guilty to the attempted murder of the Respondent Mother and the subject children – Finding that risk of harm to the children in the preparation of a Family Report would outweigh the benefit of such report to the substantive proceedings – Application dismissed – Trial directions.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Peters

RESPONDENT:	Mr Richards
INDEPENDENT CHILDREN’S LAWYER:	Ms Boughton Solicitor

FILE NUMBER: BRC 11178 of 2009

DATE DELIVERED: 30 August 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 30 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Brasch of Counsel appearing for the Applicant Mother

SOLICITOR FOR THE APPLICANT: Butler McDermott Lawyers

COUNSEL FOR THE RESPONDENT: Mr Fleming of Queen’s Counsel with Mr Tucker of Counsel appearing for the Respondent Father

SOLICITOR FOR THE RESPONDENT: Berck Solicitors

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Freeman of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Boughton Legal

Orders

IT IS ORDERED THAT:

1. The proceedings be set down for trial before the Honourable Justice Bell for three (3) days commencing 10.00 am on 18 November 2013 in Court 3 of the Brisbane Registry of the Family Court.

1. The prisoner, Mr Richards born … 1972, who is the Respondent Father in proceedings before this Court, do personally attend at Court 3, Family Court of Australia, Commonwealth Law Courts, Cnr North Quay and Tank Streets at 9.45am on Monday 18 November 2013, Tuesday 19 November 2013 and Wednesday 20 November 2013, for the purposes of appearing at, giving evidence at and conducting the trial of proceedings for parenting orders in respect of matter number BRC11178/2009 and to remain thereat until those proceedings are completed or otherwise dealt with.

1. This Order shall be deemed to be “a Notice from a Court” within the meaning of s 69(4)(d) of the Corrective Services Act (Qld) 2006 (“CSA”).

IT IS FURTHER ORDERED THAT:

1. The Respondent Father’s application for a Family Report to be prepared in these proceedings, be dismissed.

1. Leave is given to the parties to file and serve any further affidavit material by

   
   

   4.00 pm on 6 November 2013.

1. The parties to file and serve by 4.00 pm on 6 November 2013, an updated Case Information document detailing:

a.        orders sought in relation to each aspect of the application by that   party, including what orders they seek in the alternative;
           b.        a list of documents upon which they intend to rely at trial;
           c.        a list of witnesses and expert witnesses required at trial;
           d.        a list witnesses and expert witnesses from the other parties required for                 cross examination at trial;
           e.        agreement as to any witnesses who may give evidence by telephone   link;
           f.         a statement of agreed facts; and
           g.        a list of exhibits upon which each party intends to rely on at trial.

1. Leave is given to all parties to inspect subpoenaed documentation with no copies to be taken without the leave of the Court, other than by the Independent Children’s Lawyer.

1. Leave is given to the parties to re-list the matter on the giving of forty-eight (48) hours notice in writing to each party.

1. IT IS RESPECTFULLY REQUESTED of the Director-General, Queensland

   Corrective Services, that the prisoner, Mr Richards born … 1972, who is the Respondent Father in proceedings before this Honourable Court, be made available for any reports that are required to be prepared for the trial in these proceedings.

NOTATION:

IT IS NOTED the said prisoner Respondent Father is currently an inmate of the D Correctional Centre.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Richards (No 3) 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 11178 of 2009

Ms Peters

Applicant

And

Mr Richards

Respondent

REASONS FOR JUDGMENT

1. And I incorporate into these, my very brief reasons in relation to this application, my reasons for judgment dated 16 August 2013, for discharging, if I may put it that way, the orders I made on 22 May 2013, relating to the preparation of a family report.

2. The Court has a duty under section 62G of the Family Law Act 1975 (Cth) (“the Act”) to make directions for the preparation of a family report. I noted in my previous reasons that, in fact, the application appeared to be more under section 62G than under the rules. These are child related proceedings and there is no suggestion from any of the parties here involved, that I do not have the power to make such an order. But of course, it is, as has been submitted by Dr Brasch that, and while she did not use these exact words, it is discretionary and I have to take into consideration the best interests of the child principles as set out in the Act.

3. I need not go into the unfortunate facts concerning the arousal, shall we say, of this application; needless to say it is quite horrific, looking at it one way or the other.  And whether as has been suggested by the father that it was a horrible accident or it was a horrible act gone wrong or as he has pleaded to, it was attempted murder of not only his then wife or partner but of two youngish children who, were aged about ten and eight at the time or thereabouts. 

RECORDED : NOT TRANSCRIBED

1. I therefore have to determine whether I should exercise my discretion in favour of the father in his seeking a family report.  The family report sought has been, the subject of two decisions in this Court prior to my decision, in which it was denied.  I accepted on 22 May 2013 that on what appeared to be a consent on the part of the mother, that an order should be made.

2. I had initially complained of there being some paucity of evidence in the matter which was set down for trial before me in May 2013, was it not, for a period of two or three days.  And as I interpreted the instructions of the respective parties, it was not the question of whether a family report should be made but the “type” of family report, and whether there should be sufficient conditions to protect, not only the mother but in particular, the children from facing the father or in any other way having the matter intensively regurgitated.

3. However, I made that order and subsequently, as a result of submissions made to me, I discharged it and this matter has been brought back before me today for, in effect, an order seeking that a family report be prepared.  That, I understand, is on the part of the father, and on the part of the mother there is an order sought that it be refused and secondly that there should be, in effect, a speedy trial or an urgent trial.

4. In passing I asked Dr Brasch why we should have it heard urgently since the mother, in her affidavit of yesterday’s date, gave evidence that she was gravely affected by the circumstances which surrounded the unfortunate event and the fact that she may have the whole matter regurgitated, as I have said, and this is causing her tremendous emotional distress.

5. I put it to Dr Brasch, that really the question here is not her client’s welfare or emotional strength, but the interests of the children.  She submitted to me certain matters that I do not think to be persuasive but she did emphasise that the interests of the children would not be advanced by their being subjected to inquiries, whether they are discreetly, very effectively, very indirectly carried out by a person whom I have always had a great deal of respect for, one of our family consultants who is very sensitive.  But whether, just the mere fact of their being interviewed concerning their attitude to the father, it would necessarily mean that the unfortunate circumstances would be resurrected, would advance the welfare of the children?

RECORDED : NOT TRANSCRIBE

1. Mr Fleming, one of Her Majesty’s counsel, submitted to me that the Court deserves or has the right to expect, that evidence put before it would be of a sufficient extensive nature to enable the Court to come to, as far as possible, a proper decision in all of the circumstances.  He indicates that if, in fact, the report shows that either the children’s welfare would not be advanced by their having any contact with the father or that the father is a risk to the children that in all probability, as I understand, he is  not being bound by this in any way, the trial would not go on since, as I infer from his submission, the father would do the proper thing and withdraw altogether and not have any relationship with the children until such time as they are sufficiently able to perhaps put behind them those matters which took place.  I do not know if they ever will, but there is a chance that they might. 

2. He is supported by the independent children’s lawyer, through Ms Freeman, and I take into consideration the submissions that he has made very briefly and quite properly to this Court and secondly, the submissions that he has put before me in his short written argument. 

3. But as Dr Brasch said, there is no magic in a family report.  A family report is nothing more than an aid to the Court, as any other piece of evidence which is relevant to the proceedings will be.  As I have indicated verbally to the parties, I am of the belief that family reports are, if properly done and I emphasise that, if properly done, can be of great assistance to the Court.  Would a family report in this case advance the ability of me, because I think I am the unfortunate person who is to hear this case, come to what could be considered to be a reasonable conclusion?

4. The tragic circumstances of the event which in effect led to the father being incarcerated, on his own pleas, were horrific in the extreme.  The children have experienced a considerable amount of distress; the mother obviously has.  It may be of such assistance, but would that outweigh the detriment to the children, and to, I say a lesser extent because the principal interest of this Court is the welfare of the children, the detriment to the mother?  She obviously has been gravely affected by the horrific circumstances which she and the children suffered.

5. This being a discretionary matter, I do feel that I cannot see now, since it is no longer in effect a consent order, notwithstanding that I am of the belief that family reports if properly done can be of assistance, that there would not be of much moment in it, and I do not believe that the distress that would be caused to the mother, and it must be recognised that there would be distress to the children, notwithstanding there were many protective subclauses in the order for the family report, would advance the welfare of the children, or make it any easier for the unfortunate judge who is to hear this matter.  In those acceptances I accept the submissions of Dr Brasch dated 30 August 2013 and incorporate those submissions into these my reasons for judgment, and will in fact refuse the application for a family report.

6. The next question is the question of the trial date.  I understand that the father is coming up for a parole hearing in December 2013.  I asked Dr Brasch why her client, who is clearly suffering extreme difficulties in handling this matter, in her affidavit yesterday she sets out that even the mention of the name of the father causes her such distress and  that her head is almost exploding, or things to that nature.  And I said why should she have the trial?  It would only exacerbate her present condition, and bring it to a head.  And that is what she said, that she wants to bring it to a head, and get it out of the road.  I think there is much in what she says.

7. Notwithstanding the fact that the father is having a parole hearing in December of this year, we can offer to the mother hearing dates 18 to 20 November 2013 inclusive.  And I understand the directions hearing has been listed before Registrar Coutts for 7 November 2013 at 11 am. 

8. Anything further?  I will be ordering that I dismiss the application for a family report, I order that the matter be set down for hearing on those dates to which I have referred.

RECORDED  : NOT TRANSCRIBED

1. All or any material is to be filed by any of the parties by 6 November 2013.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 30 August 2013.

Associate: 

Date:  30 August 2013