Pollock and Breen-Pollock (No. 2)

[2014] FamCA 497

FAMILY COURT OF AUSTRALIA

POLLOCK & BREEN-POLLOCK (NO. 2) [2014] FamCA 497

FAMILY LAW – CHILDREN – Interim parenting – Where the father’s time with the children has been suspended by the mother – Whether the children should spend time with the father pending the final hearing – Where the final hearing is to be expedited

APPLICANT: Mr Pollock

RESPONDENT: Ms Breen-Pollock

INDEPENDENT CHILDREN’S LAWYER: Ms Neilson

FILE NUMBER: PAC 3852 of 2013

DATE DELIVERED: 30 June 2014

PLACE DELIVERED: Parramatta

PLACE HEARD:

JUDGMENT OF: Hannam J

HEARING DATE: 30 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cairns

SOLICITOR FOR THE APPLICANT: Platinum Lawyers

THE RESPONDENT: Self-represented litigant

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

Orders

(1)The matter is listed for expedited hearing for five (5) days commencing on 15 September 2014.

(2)Both parties are to file and serve any amended Application and Response upon which they intend to rely by no later than twenty-one (21) days before the commencement of the trial.

(3)Each party is to file and serve one consolidated affidavit of their evidence in chief and one affidavit from each of the witnesses upon which they rely in support of the orders sought by them with such affidavits to be in compliance with Rule 15.12 of the Family Law Rules 2004 (Cth) by no later than twenty-one (21) days before the commencement of the trial.

(4)Neither party may rely on any documents filed other than in compliance with these orders without leave of the Court.

(5)Each party is at liberty to issue such subpoena as they consider relevant to the issues in these proceedings and such subpoena shall be made returnable no later than twenty-eight (28) days before the commencement of trial and inspected prior to the first day of hearing.

(6)The Independent Children’s Lawyer is at liberty to relist the proceedings for mention before a Registrar in the event of issues arising in relation to the preparation for trial.

(7)It is noted that the Independent Children’s Lawyer is to notify Dr E, the Chapter 15 expert, of the requirement that he attend for cross-examination at the trial, and the Independent Children’s Lawyer is to provide to him all affidavits or documents produced on subpoena relating to the matters that have occurred since the date of his report.

(8)The Applicant is to provide to the Respondent not less than twenty-one (21) days before the commencement of the trial a draft Chronology setting out the Applicant’s contentions as to relevant dates and matters and the Respondent within a further fourteen (14) days insert into that Chronology the Respondent’s response thereto and the relevant dates and matters contended for by the Respondent.

(9)The Respondent is to cause the completed Chronology to be forwarded to the Court for filing not less than seven (7) days prior to the commencement of the trial.

(10)Each party is to file and serve an outline of case document not less than seven (7) days prior to the commencement of the trial setting out:

(a)a precise Minute of Orders sought;

(b)a list of documents to be read in their case;

(c)a brief summary of argument touching upon the matters set out s 60CC of the Act with reference to the relevant evidence relied on;

(d)a list of authorities to be relied upon.

(11)In the event of any applicable setting down and/or hearing fee not having been reduced on the basis of financial hardship, the Applicant and Respondent shall pay any such fee equally within twenty-one (21) days of the trial dates.

(12)The Independent Children’s Lawyer has liberty to relist the matter before myself:

(a)In relation to the issue of witnesses and a trial plan; and

(b)In the event that the children do not spend time with the father because of the mother not making the children available.

(13)The father’s Application – Contravention is adjourned to be dealt with at the final hearing.

(14)Pending the final hearing in September 2014:

(a)The interim Orders are to continue with the exception of Order 3 of Orders made on 18 February 2014 and, in lieu of Order 3, the following Order is made:

(i)The children are to spend time with the father each Saturday from 8.00 am to 8.00 pm commencing on 5 July 2014.

(b)The mother is restrained from taking the children for medical treatment or assessment, except in the event of an emergency, without giving prior notice to the father’s legal representative and the Independent Children’s Lawyer of the reason for that assessment or treatment.

(c)The mother is restrained from taking the children to a police station or having them interviewed by police without first informing the Independent Children’s Lawyer and the father’s legal representative of the reason for that interview.

(d)Order 9 of Orders made on 18 February 2014 is discharged and, in lieu, the following Order is made:

(i)For the purpose of changeover the father is to collect children from Suburb F McDonalds Family Restaurant at 8.00 am each Saturday and the mother is to collect the children from Suburb G McDonalds Family Restaurant at 8.00 pm each Saturday.

IT IS NOTED THAT

(15)In the event that the children are unwell, the responsibility for taking them for medical assessment or treatment is upon the father when they are in his care under these Orders and the mother is to make the children available to the father even in the event that she assesses that they are unwell or require medical treatment, unless the children are required to be presented to a hospital.

Trial Plan:

(16)It is noted that the following witnesses are to be called on behalf of the parties:

(a)       Applicant:      The father, the paternal grandparents and the paternal aunt;

(b)       Respondent:   The mother and her treating psychologist; and

(c)       Other:            Chapter 15 expert, Dr E.

IT IS ORDERED IN CHAMBERS THAT

(17)The proceedings are to be listed for a readiness check before myself at 10.00 am on 25 August 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pollock & Breen-Pollock (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 PARRAMATTA

FILE NUMBER: PAC 3852 of 2013

Mr Pollock

Applicant

And

Ms Breen-Pollock

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1.On 18 February 2014 I gave reasons for Judgment concerning interim Orders about the children in these proceedings spending time with their father.  Agreement had at that stage been reached on most matters relating to the children spending time with their father but the mother remained concerned about overnight time. 

2.The regime of Orders made on 18 February 2014 provided for the children to spend time with their father each Saturday for 12 hours in the presence of either the paternal grandparents or the paternal aunt and that was to continue for a period of six weeks.  After six weeks, the children were to spend time with their father each alternate weekend commencing from after school Friday, with the mother delivering the children to the paternal grandparents’ home, until 4.00 pm Sunday.  This time together was to occur at the home of the paternal grandparents.

3.The father has filed a contravention application, which he has consented to being adjourned to the final hearing and also seeks a variation from the interim Orders to allow him instead to collect the children from school on Fridays when their time with him is to commence. 

4.The mother’s position is unclear, in that in her Application in a Case she seeks a variation to the Orders relating to the children spending time with their father that would see that time being supervised by a professional agency or someone other than the paternal grandparents, but in the course of submissions, she said she felt it was in the best interests of the children for them to spend no time with their father until the matter is heard. 

5.The Independent Children’s Lawyer does not support the children spending no time with their father or supervision being by a professional agency and says that there is nothing to suggest that the paternal grandparents have not been suitable supervisors.  She supports orders suggested by me in the course of argument, similar to those which operated in the first six weeks following 18 February 2014, that is, the children spending time with their father one day each week, supervised by the paternal grandparents or aunt.

6.In my reasons for decision on 18 February 2014, I referred to the evidence of the Chapter 15 expert, Dr E, in his report that suggested that care should be taken so that the regime put in place was not more than the mother could cope with, so that it did not result in the Orders being undermined. 

7.For the purposes of the competing applications today, there is no dispute between the parties that, other than a specific difficulty on the first day the time was to continue, that is, 22 March 2014, when the mother did not make the children available to the father and which is the subject of a contravention allegation, otherwise the time the children spent with their father was uneventful for the following five weeks, until the weekend of 5 and 6 April 2014.  That was the weekend that the children were to spend overnight time with their father on the first occasion.  It appears that the mother believed that the weekend time was not to commence on this date and she did not deliver the children to the father after school on Friday 4 April 2014, and instead delivered them on Saturday 5 April 2014.  And on that date the children spent overnight time with their father in accordance with the Orders, but it was obviously a matter that the mother had not been expecting.

8.On the following weekend, 11 April 2014, it is not in dispute that the mother believed that the children were to spend overnight time with their father and presented them at the grandmother’s home on the Friday afternoon, even though it was not a weekend they were due to spend time with him and the grandparents asked the mother to take the children away with her.  The mother then took the children to a police station, but the police took no action in relation to the Court Orders. 

9.The children have spent no time with their father since 6 April 2014 as the mother has not made them available.

10.The mother attended another police station on 22 May 2014 with numerous allegations in relation to the father’s conduct, which included historical matters which apparently had led to the breakdown in the parents’ relationship.  These matters have been investigated by Joint Investigative Response Team with no further action having been taken, and these matters were also referred to in my decision of 18 February 2014. 

11.The complaints, however, also include some matters of a similar kind to these historical allegations but which were said to have arisen in recent times.  Essentially, these are further allegations of sexual harm in relation to the child K, which are said to consist of a disclosure having been made by K, the mother observing lesions in K’s genital area and K having contracted mollusca contagiosa, which a doctor says:

In the absence of an alternative source, sexual transmission should be considered a possibility.

The doctor also says that this is a common viral infection in children and is most frequently contracted via sharing baths, swimming pools, towels and face washers with other infected children.  All of this evidence in relation to the most recent allegation is contested.

12.The issue to be determined today relates to which of the competing applications or whether some other orders are in the best interests of these children in the interim.  In relation to the best interests of the children, apart from the recent allegation of the mother in relation to sexual harm, all of the other matters referred to in the reasons of Judgment of 18 February 2014 remain unchanged.  At the time of that decision, the children had not seen their father for about a month, again due to their mother not allowing such time together due to her concerns of sexual harm.

13.At that stage, the entire family had been interviewed by Dr E, the child psychiatrist, and a number of his conclusions were referred to in that decision, as they were not in dispute at the time.  They also have not been put in dispute today.  The ultimate finding, in particular, relating to the risk of harm that arises concerning the children, could not be determined on the last occasion or today, and will be a matter for the final hearing, which has now been expedited.

14.Of particular relevance in relation to the application today is Dr E’s description of the relationship between the children and each of their parents being of a high quality.  He uses words such as “positive”, “warm”, “close” and “stable” in relation to each of the parents and paternal grandparents.  He identifies no deficits in parenting and describes the children as being extremely well-cared for.  In submissions today, the mother said that she did agree that the children should have a relationship with their father and the only matter of concern were the allegations of sexual harm. 

15.There was also no dispute on the past occasion, and that continues to remain the case, that the father had been closely involved with the children’s care prior to the parents’ separation.  The doctor considered at that time the likely impact of the children not seeing their father at all would be very adverse, as they are, in his opinion, very attached to him and showed a great deal of affection and enthusiasm.  The doctor expressed similar views in relation to the paternal grandparents, though, of course, their relationship is not as important as the parents’.  He recommended, however, that it may be less anxiety-provoking for the mother for the initial contact to be a joint one with the father and the grandparents.

16.Essentially, in my view, nothing has changed since the last application in that on that occasion the mother appeared to maintain that the father had sexually harmed the children in the past.  She maintains that position now and also seems to suggest that he has harmed the younger child, K, sexually in recent times, though it may be that she is suggesting that perpetrator of sexual harm is the paternal grandmother.  Her exact allegation is unclear. 

17.Other than the issue in relation to protection of harm, which undoubtedly is arguably the most important of the best interests considerations, all of the other considerations remain the same as they did on the last occasion.  In particular, there is the issue of the children receiving the benefit of a meaningful relationship with both of their parents. 

18.Although interim matters are dealt with on the basis of the uncontested facts, the Court must also exercise great caution when there are allegations made of a risk of harm and make some form of assessment in relation to them. 

19.In my view, considering that no concerns about the father’s care arose until overnight time with the children commenced, and in light of the mother’s previous anxieties about this time together, in particular, the issue of mitigation of risk can be appropriately dealt with by reducing the time between the children and their father to a single day a week in similar orders as those which were in existence for the first six weeks of the previous regime, that is, from 8.00 am to 8.00 pm.  This time together should also occur either under the supervision of the paternal grandparents or paternal aunt, as nothing, in my view, particularly that is undisputed, arises in relation to the quality of that supervision.

20.There remains the issue of the impact on the children of the mother having taken the children to be medically treated or examined possibly unnecessarily and also taking them for medical treatment on a day they are due to spend time with their father.  The restraints upon the mother proposed by the Independent Children’s Lawyer are not opposed by the mother and I propose making them.  I also raised with the parties a potential order to the effect that the mother not to take the children to a police station without first informing the father’s legal representatives and the Independent Children’s Lawyer of the matter which she sought to have investigated.  The mother also did not oppose such an order and I propose making that order.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 30 June 2014.

Legal Associate:       

Date:    10 July 2014