POTTER & ROSS

[2014] FamCA 1056

FAMILY COURT OF AUSTRALIA

POTTER & ROSS [2014] FamCA 1056

FAMILY LAW – CHILDREN – Independent Children’s Lawyer’s Application For Summary Dismissal – Rice v Asplund – Application dismissed

FAMILY LAW – CHILDREN – Interim Application – adjourned pending the receipt of a further Family Report

Family Law Act 1975 (Cth) s 68LA

Family Law Rules (2004) Rule 10.14

Rice v Asplund [1979] FLC 90 – 75
SPS & PLS [2008] FamCAFC 16
Poisat and Poisat [2014] FamCAFC 129

APPLICANT: Mr Potter

RESPONDENT: Ms Ross

INDEPENDENT CHILDREN’S LAWYER: Jones McCarthy Lawyers

FILE NUMBER: BRC 48 of 2007

DATE DELIVERED: 28 November 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 25 November 2014

REPRESENTATION

APPLICANT:	In Person
RESPONDENT:	In Person
THE INDEPENDENT CHILDREN’S LAWYER:	Mr Dodd of Jones McCarthy Lawyers

Orders

1. The Application in a Case filed by the Independent Children’s Lawyer on 16 September 2014 is dismissed.

2. The Application for interim orders contained in the Initiating Application filed by the father (Mr Potter) on 13 May 2014, the Application in a Case filed by the father (Mr Potter) on 18 November 2014 and the Response to an Application in a Case (which contains a cross-application for interim parenting orders) filed by the mother (Ms Ross) on 6 November 2014 are adjourned to a date to be advised.

3. The Application-Contravention filed by the mother (Ms Ross) on 26 May 2014 is adjourned to a date to be to be advised.

4. Clause 3 of the Application in a Case filed by the father (Mr Potter) on 18 November 2014 is dismissed.

5. The father and mother shall attend on Ms M on 11 December 2014 for the purpose of interview for the preparation of an updated Family Report.

6. Both parties shall do all things necessary to ensure that the child, Y, born … 2005, attend on Ms M on 11 December 2014 for the purpose of interview for the preparation of an updated Family Report.

7. The Independent Children’s Lawyer has liberty to apply in relation to the implementation of this Order upon the giving of forty-eight (48) hours’ notice in writing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Potter & Ross 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 48 of 2007

Mr Potter

Applicant

And

Ms Ross

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These proceedings concern the child Y, born in 2005 (“the child”), whose parents have been intermittently involved in proceedings for parenting orders since about 2007.

2. I do not intend in these short Reasons to detail the intricacies of the litigation in which they have previously been embroiled. Sufficient understanding of the same can be gained from a perusal of the Reasons for Judgment delivered by Murphy J on 3 September 2008, 9 November 2011 and 3 February 2012.

3. A broad overview of previous parenting Orders and the circumstances in which they have been made is that:

   a)on 3 September 2008: after a trial before Murphy J the parties entered into Orders, by consent and on a final basis – this provided that the child’s time with the father increase from mid-September 2008 until after the Christmas school holiday period in 2009 at which time it was from Friday afternoon until Monday morning (week one) and from after school Wednesday to before school Friday (week two); and

   b)on about 24 October 2011: the father failed to return the child to the mother pursuant to the terms of the September 2008 Order; and

   c)on 9 November 2011: Murphy J ordered the father to return the child to the mother in compliance with the terms of the September 2008 Order; and

   d)on 3 February 2012: after conducting an interim hearing at which he permitted the father to cross-examine the mother and her partner, Murphy J dismissed the parties’ respective Applications for further interim parenting orders – proceedings for final parenting orders remained on foot; and

   e)on 12 June 2013: Murphy J made Orders by consent on a final basis (the June 2013 Order) - this provided, amongst other things, that the parents have equal shared parental responsibility for the child and that he live with the father from Friday afternoon to before school on Wednesday each alternate week;  

   f)on 11 May 2014: the father again failed to return the child to the mother’s care. A recovery order was sought and granted on 13 June 2014, the time between which, the child remained with the father; and

   g)on 13 June 2014: Acting Principal Registrar Spink ordered the father to return the child to the mother in compliance with the terms of the then operative parenting Order.

4. Both parties now seek to discharge the June 2013 Order.

5. As he has previously, the father seeks instead that the child live with him and the mother be restrained from bringing him into contact with her partner, Mr S. He proposes the child spend time with his mother from after school Friday until before school the following Thursday “once the father is satisfied that the mother shall not bring their child into contact with domestic violence or emotional abuse while in her care.” He proposes a variety of other orders, included in which is that the parents have equal shared parental responsibility for the “long term care, welfare and development of [the child].”

6. The mother now seeks that the child live with her, she have sole parental responsibility for the child’s “long-term care, welfare and development” and that he spend time with the father on a supervised basis.

7. It is against this background, then, that the Independent Children’s Lawyer filed an Application in a Case on 16 September 2014 seeking that the Initiating Application filed by the father on 13 May 2014 and the Responses filed by the mother on 30 June 2014 and 24 July 2014 be dismissed.

8. The written submissions prepared by the Independent Children’s Lawyer[1] cogently outline that this Application proceeds on the basis that there has not been a change of such significance that the child’s best interests require the June 2013 Order be “revisited” as contended for by both parents.[2]

   [1]          Exhibit "A".

   [2]See: Rice v Asplund [1979] FLC 90 – 75; SPS & PLS [2008] FamCAFC 16; Poisat and Poisat [2014] FamCAFC 129.

9. The oral submissions made by the Independent Children’s Lawyer make it abundantly clear that he persists with the Application out of significant concern for the impact on the child of continuing litigation between his parents. This expressed concern clearly arises from the formation by the Independent Children’s Lawyer of an independent view, based on the evidence available to him, of what is in the child’s best interests[3] and a demonstration of the discharge by him of the statutory obligation to:

   a)act in relation to the proceedings in what the Independent Children’s Lawyer believes to be the best interests of the child;[4] and

   b)make a submission to the Court suggesting the adoption of a course of action, having been satisfied that the adoption of this particular course of action is in the child’s best interests;[5] and

   c)endeavour to minimise the trauma to the child associated with further proceedings between his parents.[6]

   [3] s 68LA(2)(a) Family Law Act 1975.

   [4] s 68LA(2)(b) Family Law Act 1975.

   [5] s 68LA(3) Family Law Act 1975.

   [6] s 68LA(5)(d) Family Law Act 1975.

10. The father has consistently asserted, in essence, that he previously determined not to return the child to the mother (as provided for by the terms of the operative parenting Order) because to do so would have exposed him to an unacceptable risk of harm. This assertion forms the basis for his current Initiating Application and proposal that the child live primarily with him.

11. The mother contends that the orders she now seeks will prevent the child being exposed to an unacceptable risk of harm caused by either a repetition of the father’s previous decisions to retain him contrary to the terms of agreed parenting Orders or by exposure to the father’s manipulative, emotionally destructive and undermining parenting.

12. I accept, without hesitation, that the Independent Children’s Lawyer genuinely holds significant concerns for the impact on the child of continued litigation between his parents. However, it seems to me – to the extent to which it is possible to draw any conclusion at an interim proceeding – that it is not the proceedings per se that are likely to be harmful for the child but the decisions made by each of his parents as to the manner in which they interact and react to matters arising from or associated with the child’s parenting.

13. I consider it more likely than not that an order dismissing the father’s Initiating Application and the mother’s Response to the same is unlikely to bring proceedings between the parties about the child to an end for any significant period of time.

14. Having taken into account and considered the contents of the Independent Children’s Lawyer’s written submission, the statements of principle contained within the authorities cited therein and the factual circumstances of this particular case I reluctantly conclude that the child’s best interests require a reconsideration of whether the June 2013 Order is one which is in his best interests.

15. A consideration – even if only perfunctory – of the evidence relied upon by the parties persuades me that the circumstances for the child may now be such that the point has been reached where the Court will be called upon to determine whether his best interests are met by a restriction of his interaction with a parent. Such conclusion – reached on an interim basis, of course – seems to me to follow from a consideration of the matters which have occurred after the June 2013 Order was made by consent.

16. I am, therefore, not persuaded that the Initiating Application and Responses to the same are frivolous, vexatious or an abuse of process or that there is no reasonable likelihood of a party successfully persuading a Court that the child’s best interests can now only be met by a significant change to the existing parenting regime.[7]

    [7]           Rule 10.14 Family Law Rules (2004).

17. For these Reasons, I reluctantly decline to act in the manner sought by the Independent Children’s Lawyer and dismiss the Application in a Case filed by him on 16 September 2014.

Where to from now?

1. Both parties agreed that their respective Interim Applications be adjourned to await the preparation of a further Family Report. The Independent Children’s Lawyer informs the Court that Ms M, who has prepared a number of earlier reports in the proceedings, can conduct interviews with the parties and the child on 11 December 2014.

2. The father seeks an order[8] that J, the mother’s son with Mr Olsen (who has provided an affidavit for the father for use in the Interim Application), be involved in further interviews with Ms M. He does so on the basis of a contention that J was the person to whom the child Y made disclosures of harmful behaviour to which he was exposed in the mother’s household.

   [8]Clause 3, father’s Amended Application in Case filed 18 November 2014; clause 3.5, father’s Amended Initiating Application filed 18 November 2014; clause 3.1, father’s Initiating Application filed 13 May 2014.

3. I do not know Mr Olen’s attitude to J being involved in the litigation between the mother and the child Y’s father. I do not know Mr Olsen’s attitude to J again being involved in interviews for proceedings in this Court. I do know that the mother opposes J’s involvement on the basis that the same would be harmful to him as it would embroil him in the litigation between herself and the child Y’s father. She also relies upon the fact that she and Mr Olsen have existing Orders – made by consent – which provide that J is not to come into contact with the child Y’s father.

4. The Independent Children’s Lawyer does not support J being involved in the interview process. In essence, he submits that, in proposing such a course, the father is attempting to cause a situation in which J – a nearly 13-year-old child – is, in effect, a witness (via the report process) in the proceedings.

5. J lives predominantly with his father Mr Olsen. The Orders provide that he has time with his mother. It is clear from the contents of Mr Olsen’s affidavit that at least until fairly recently he and the mother agreed upon and implemented a parenting regime which saw J live with each of them for alternating weeks. This regime has ended but it is also clear that J himself has expressed a desire to spend at least alternate weekends with his mother in her care.

6. Given Mr Olsen’s sworn evidence to the effect that he and the mother are attempting to engage in a mediation process to discuss and resolve any issues or difficulties which have arisen between them and for J, I consider it unlikely to be helpful or beneficial for them or J that he be joined in this process - as he would be if compelled to attend on Ms M.

7. For these short Reasons, then, I decline to make an order in the terms sought by the father in clause 3 of the father’s Amended Application in Case filed 18 November 2014, clause 3.5 of the father’s Amended Initiating Application filed 18 November 2014 and clause 3.1 of the father’s Initiating Application filed 13 May 2014.

8. It is clear that there is a significant necessity for this matter to be finalised. As noted above, it may well have reached the point that the child Y’s best interests can only be met by an order which restricts his time with one of his parents. A consideration of the history of interaction between them and the matters which have consistently arisen suggest that absent a change to the existing parenting regime, it is more likely than not that he will continue to be exposed to and embroiled in allegations and counter allegations.

9. No doubt the updated report to be prepared by Ms M will consider such matters.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 28 November 2014.

Associate:                 

Date:    28 November 2014