Priceman and Carl (No 2)

[2017] FamCA 317

FAMILY COURT OF AUSTRALIA

PRICEMAN & CARL (NO 2) [2017] FamCA 317

FAMILY LAW – CHILDREN - With whom a child lives - With whom a child spends time - Family violence
FAMILY LAW – INJUNCTIONS - Protection of child

APPLICANT: Mr Priceman

RESPONDENT: Ms Carl

INDEPENDENT CHILDREN’S LAWYER: Ms C Naidu

FILE NUMBER: CAC 1583 of 2010

DATE DELIVERED: 5 May 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 5 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Hubert, Capon & Hubert Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Dorling, Infinity Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Claire Naidu & Co

Orders

IT IS ORDERED THAT

Upon noting that the child:

A.Will continue to attend F School for the remainder of her primary schooling;

B.Will attend G School; and

C.Will primarily consult with H Medical Centre with respect to her health.

BY CONSENT IT IS ORDERED THAT

1. The parties have equal shared parental responsibility for the child B, born … 2007.

2. The child live with the father.

3. The child spend time with the mother as follows:

   (a)During school term:

   (i)From 5pm on Saturday 13 May 2017 to 5pm on Sunday 14 May 2017;

   (ii)From the conclusion of school on Friday 26 May 2017 to 3pm on Saturday 27 May 2017.

   (iii)From the conclusion of school on Friday 9 June 2017 to 12pm Sunday 11 June 2017; and

   (iv)Thereafter from the conclusion of school Friday until the commencement of school Monday on each alternate weekend commencing Friday 23 June 2017 UPON NOTING THAT if the mother’s time with the child falls on a weekend with a public holiday on the Monday, her time with the child will extend to the commencement of school Tuesday.

   (b)For half of each school holiday period as may be agreed between the parties and in default of agreement, on a week about basis beginning on the last Friday of school and alternating each year.

   (c)Such further or other times as may be requested by the child or otherwise agreed between the parties.

4. The child spend time with the parties for special occasions as follows:

   (a)The party with whom the child is not staying on Christmas Day is to have the child from 3pm on Christmas Day until 9am Boxing Day;

   (b)If Easter falls outside school holidays and on a contact weekend, the contact will commence on the Thursday and conclude on the Tuesday;

   (c)The party with whom the child is not staying on the child’s birthday, is to have the child for a period of not less than 2 hours as agreed between the parties;

   (d)The child spend time with the mother on the Mother’s Day weekend from 5pm on the night prior to Mother’s Day until 5pm Mother’s Day;

   (e)The child spend time with the father on the Father’s Day weekend from 5pm on the night prior to Father’s Day until 5pm Father’s Day; and

   (f)Such further or other times as may be agreed between the parties.

5. Should the child be in the care of the mother and wish to return to the father’s care, then the mother will contact the father with a view to returning the child to the father’s care.

6. The parties will allow liberal telephone communication between the child and the other party provided such communication is reasonable in the circumstances.

7. The father be restrained and an injunction be granted restraining him from allowing the paternal grandmother to be unsupervised with the child UPON NOTING THAT a short meeting in the context of ordinary household interaction spanning only a few minutes will not be construed as a breach of this order. 

8. The parties be restrained and injunctions be granted restraining each of them from:

   (a)Denigrating, harassing, insulting, assaulting or abusing the other parent, or their family, in the presence or hearing of the child;

   (b)Discussing care arrangements or these proceedings in the presence or hearing of the child, other than shortly advising the outcome of these proceedings;

   (c)Questioning the child’s wishes with respect to care arrangements;

   (d)Drinking to excess with 24 hours prior to or while the child is in their care;

   (e)Pressuring the child with respect to their living and care arrangements;

   (f)Discussing any sexual assault allegations previously raised in these or previous family law proceedings with the child; and

   (g)Allowing any other person to do the things referred to in this paragraph.

9. The mother be restrained and an injunction be granted hereby restraining her from allowing the child to come into contact with her son J.

10. The father attends and completes a post-separation parenting course within three months of these orders and receive guidance from the child’s counsellor as to appropriate parenting strategies.

11. The mother attends supportive counselling to address any emotional issues and to consider appropriate parenting strategies with the child, with the mother’s counsellor to be provided with the Family Report.

12. The father be at liberty to provide the Family Report to any Court dealing with historical sexual abuse allegations against him or the paternal grandmother.

13. The father will do all things and sign all documents necessary for the mother to be permitted to speak to any professional dealing with the child including but not limited to the child’s counsellor, school, medical practitioners and the like.

14. This order be deemed as necessary authority for the mother to obtain any information relevant to the child in respect of her schooling, education, health and any other matter that an ordinary parent would be informed about.

15. The parties keep the other informed of all current contact details including their address and telephone number and will advise the other party within 24 hours of any change thereto.

16. The parties will only allow the child to be exposed to age-appropriate video games, movies and telephone shows whilst in their care.

17. Within two years of the date of these orders, the parties attend community-based mediation to discuss the child’s ongoing living arrangements.

18. The parties shall each attend upon a General Practitioner to receive assistance, advice and recommendations in relation to any mental health medication and / or treatment they may require and will follow all reasonable recommendations.

19. For all handovers that do not occur at the child’s school will occur at the mother’s home UNLESS the child wishes to be returned to the father’s care early, in which case the mother will drop the child to the father.

20. All extant applications be dismissed as finalised.

IT IS FURTHER ORDERED THAT

1. I set aside the subpoena addressed to I Health.  If the subpoena has been sent to I Health I direct the Registrar of this Court to write to I Health advising them that the subpoena has been withdrawn.

2. I otherwise remove the matter from the pending cases list.  

3. Noting that the father will make the child available to the Independent Children’s Lawyer to facilitate the Independent Children’s Lawyer explaining the orders to the child, a period of 28 days after today the Independent Children’s Lawyer is discharged from these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Priceman & Carl has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1583 of 2010

Mr Priceman

Applicant

And

Ms Carl

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The matter was listed for today for directions to prepare the matter for trial following the release of the Family Report.  I have been taken to various parts of the Family Report.  In short, the Family Report recommended that the child would be living with her father and only subject to particular conditions would be able to spend time with her mother.  It is clear from the history of the matter that although there have been troubles between the child and her mother the child loves her mother very much and has in fact expressed that she would like to live with her mother.

2. Following the release of the Family Consultant’s Report the parties have come to a conclusion that orders can be made by agreement.  Initially there were some issues with order 3(a) with the Independent Children’s Lawyer indicating that while she was content to consent to all of the orders, she was not content to consent to 3(a) as it then stood.

3. The matter was stood down and the parties have, together with the Independent Children’s Lawyer, come to a conclusion that an alternate version 3(a) can be substituted.  The parties have also agreed to delete one of the restraints by injunction which was number 8(f) which I had indicated to the parties that I was not prepared to make due to its uncertain nature.  The thrust of the orders that the parties have agreed to will mean that the child lives with her father and that her contact with the paternal grandmother will be subject in general terms to some form of supervision, although not a constant supervision.  The orders also provide that the child will spend regular time with her mother which after a period of reintroduction will be alternate weekend time as well as school holiday time.

4. The parties addressed me in relation to the issues of how it is that these consent terms deal with issues of family violence.  Family violence was a key matter.  There was some violence indicated between the parties and I was taken to the aspect of the Family Report that dealt with that violence.  That violence was described by the Family Report writer as situational couple violence which was not characterised by the exercise of power and control.  It appeared to have been confined to a number of incidents and appears to be unlikely to be an ongoing feature now that the couple is no longer in a relationship with each other. 

5. The more serious matters that were required to be dealt with were the question of risk that had been raised in respect of the paternal grandmother.  The paternal grandmother denies that she has dealt sexually with the child and their relationship as observed by the Family Consultant did not appear as what had been described by the mother of the relationship between the child and the paternal grandmother, that is, while the mother had expressed that the child was terrified of her grandmother that was not evident and in fact a very different relationship which appeared to be characterised by comfort on the part of the child was seen by the Family Consultant.  Further, there was an ambiguity of allegations in the first place as to lay open any question of risk. 

6. The arrangements that have been agreed to are stricter than those that were recommended by the Family Consultant.  It appears to be the case that the mother still harbours concerns as to the child’s wellbeing with the grandmother.  Those have to some extent been accommodated by the orders which provide for some degree of supervision.  I am content that the consent terms are such as to allay any reasonable concerns as to the paternal grandmother posing a risk to the child.  I note that the paternal grandmother has given an explanation of the touching of the child being related to dealing with hygiene.  This appears to be a reasonable explanation on the material as I understand it to be at present. 

7. The other concerning matter related to what form of time the child should spend with her mother.  The concern raised by the Family Consultant flowed from a concern that the mother would continue to discuss with the child and press home issues of potential sexual abuse.  This was seen to be detrimental to the child.

8. The recommendations put forward by the Family Consultant required in order for the child to spend regular day time periods with her mother, that the mother abide by an undertaking to refrain from discussing allegations of sexual abuse with the child.  Notwithstanding that recommendation, the father has consented to terms which will allow the mother to spend each alternate weekend with the child as well as block periods of time on the school holidays.  This is predicated upon a complex set of injunctions that each of the parties agrees to.  The injunctions deal with many different aspects of interaction concerning the child and I consider those to be appropriately tailored to this case given each of the parties consent to them.  They may be quite onerous for the parties to comply with but the agreement of each of the parties to abide by what will be orders of the Court which restrain them from engaging in particular forms of action means that they can be applied to this case to deal with the issues raised by each of the parties to allay any outstanding concerns. 

9. The matters which loom largest in relation to these consent terms are the issues of the promotion of meaningful relationships with each of the parents and the protection of the child.  I am satisfied that in the terms agreed to by each of the parties those ends are achieved and the orders are fashioned in order to promote the child’s best interests. 

10. I further understand that consent to these terms brings with it difficulties for each of the parties.  On the part of the father it still provides difficulty for his mother to move back into the house.  There is no prohibition on her doing so, but clearly she will not be at the same ease in her family home as another member of the community might be given the nature of the injunction that the father has consented to.  It is to his credit that he has consented to those terms which do provide some difficulties for his family, a family which has gone to extreme lengths to provide a home for the child, lengths which have included his mother moving out of her own home to reside in a caravan in another town to facilitate that occurring. 

11. For the mother too, the orders reflect a compromise on her part.  She has expressed concerns in relation to the child in living in the household.  She has consented to that occurring, which must have been a difficult concession for her to make.  As noted, the circumstances that surround these orders have been very difficult.  The actions in the parties in coming to a position which can facilitate the child’s best interest is to their credit. 

12. I note further the role of the Independent Children’s Lawyer.  The Independent Children’s Lawyer was not prepared to consent to all of the terms originally.  The role of an Independent Children’s Lawyer is to advocate independently for the interests of the child and it is appropriate where an Independent Children’s Lawyer has formed the view that particular terms are not in the interests of the child to withhold that consent notwithstanding that the other parties have also consented to those terms. 

13. An aspect of the nature of the injunctions contained within these orders, having already noted their complexity and onerous nature, is that failure to comply with the injunctions, particular failure to comply with the injunction to refrain from discussion with the child of issues of sexual abuse having been previously raised in these proceedings is likely to result in these matters being relisted in contravention proceedings and the orders being revisited.  It is highly important that the parties each comply with the injunctions notwithstanding that it is difficult to do so.

14. Being satisfied that the orders are in the child‘s best interests I make orders in terms of Exhibit C1 as amended by the striking out of Order 8(f) and with the replacement of Order 3(a) in exhibit C1 with Order 3(a) in exhibit C2.  I note that at present as well as primary proceedings there are is an outstanding contravention.  The father has previously indicated that he does not press that contravention, the terms of the consent orders mean that all extant applications are dismissed as finalised.

15. I make a further order to set aside the subpoena addressed to I Health and if the subpoena has been sent to I Health I direct the Registrar of this Court to write to I Health advising them that the subpoena has been withdrawn.

16. I otherwise remove the matter from the pending cases list. 

17. Noting that the father will make the child available to the Independent Children’s Lawyer to facilitate the Independent Children’s Lawyer explaining the orders to the child a period of 28 days after today the Independent Children’s Lawyer is discharged from these proceedings.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 May 2017.

Associate: 

Date:   17 May 2017