Rabkin and Edsall

[2018] FamCA 189

FAMILY COURT OF AUSTRALIA

RABKIN & EDSALL [2018] FamCA 189

FAMILY LAW – CHILDREN – Interim parenting orders – where the child has made comments to the mother that he wants to die – where the child has disclosed to the mother that the father has hit him whilst in his care – where the father disputes that assertion – where the matter is set down for resumed hearing – where it is agreed between the parties for the child to attend a psychologist – where the child is to spend time with the father supervised by the paternal grandmother.

Family Law Act 1975 (Cth)

Banks v Banks (2015) FLC 93-637
Goode v Goode (2006) FLC 93-286

APPLICANT: Mr Rabkin

RESPONDENT: Ms Edsall

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

FILE NUMBER: BRC 5702 of 2013

DATE DELIVERED: 26 March 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 23 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Oakley of Counsel

SOLICITOR FOR THE APPLICANT: Couper Geysen Family and Animal Law

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The operation of Order 5(a) and 5(b) of the Orders made by Judge Howard on 18 December 2015 (amended 21 December 2015) is suspended and in lieu thereof, the child K born … 2010 (“the child”) will spend time with the father as follows:

   (a)during the gazetted Easter school holiday period: from after school on Thursday 29 March 2018 to noon Thursday 5 April 2018, with the paternal grandmother to collect the child from school at the commencement of time and to return the child to the mother at McDonalds L Town at the conclusion of time;

   (b)from after school Thursday 19 April 2018 to before school Tuesday 24 April 2018, with the paternal grandmother to collect the child from school at the commencement of time and to return the child to school at the conclusion of time.

2. The child’s time with the father pursuant to this Order shall be supervised by the paternal grandmother.

3. The father arrange for the paternal grandmother to collect the child from school to facilitate the child spending time with him pursuant to Order 1.

4. The father is not to use any physical discipline toward the child.

5. The parents ensure that all court documents and other related documents such as assessments are kept in a secure place to which the child has no access.

IT IS FURTHER ORDERED BY CONSENT THAT

1. The parents attend and cause the child to attend upon Ms M of N Psychology for counselling as directed by her.

2. Pursuant to s 121 of the Family Law Act 1975 (Cth) leave be given to the Independent Children’s Lawyer to provide Ms M the following documents:

   (a)Family Reports of Mr O filed 13 December 2013, 5 May 2015 and 27 February 2017; and

   (b)Report of Dr P, psychiatrist filed 9 February 2017; and

   (c)Report of Dr Q, paediatrician filed 21 February 2017; and

   (d)Section 11F Memorandum prepared by Ms R dated 21 March 2018; and

   (e)A copy of this Order.

3. Pursuant to s 121 of the Family Law Act 1975 (Cth) the Independent Children’s Lawyer has leave to provide a copy of the Order made today to the child’s school.

AND IT IS FURTHER ORDERED THAT

1. By no later than 4.00 pm on 6 April 2018: the parties file and serve any further affidavit material, including a financial statement, on which they intend to rely at the resumed hearing listed for 19 and 20 April 2018.

2. By no later than 4.00 pm on 13 April 2018: the parties file and serve any affidavits strictly in reply.

3. By no later than 4.00 pm on 13 April 2018: the parties file and serve a Minute of Order sought.

4. By no later than 4.00 pm on 13 April 2018: the parties provide to each other full and frank disclosure required as set out in Chapter 13 of the Family Law Rules 2004 (Cth).

5. By no later than 4.00 pm on 17 April 2018: the parties notify each other in writing of the name or names of any witnesses required for cross-examination.

6. The parties have leave to issue any further subpoena necessary.

7. The parties have liberty to apply on the giving of 24 hours’ notice in writing to each other and by directing correspondence to … to the attention of the Case Manager.

8. In the event any party requires any of the following at the trial of this matter:

   (a)       an interpreter; or

   (b)audio or visual equipment, including for the playing of any video or audio recordings; or

   (c)       Cisco Jabber video equipment; or

   (d)       a hearing loop

   they are to notify the Case Co-ordinator for the matter in writing as soon as possible and no later than seven days prior to the commencement of the final hearing.

9. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 Fact Sheet attached and these particulars are included in these Orders.

IT IS DIRECTED THAT

1. Any interlocutory application in this matter is bought to the attention of Justice Hogan as soon as possible after it is filed.

NOTATION

(A)In the event that a witness is required for cross-examination and leave is given for that witness to be cross-examined by telephone, the party calling that witness shall notify the Case Co-ordinator of the telephone number to be used to contact that person.

(B)Such leave for a witness to attend by telephone is conditional upon each witness being informed that they are:

(a)to be in a private place when they are called to give evidence; and

(b)to have with them a copy of their affidavit/s or report/s; and

to have available to them a method by which they can receive, electronically, any documentation that any party may wish them to be shown during the course of cross-examination.

(C)The Court requests that Ms M give consideration to engaging in discussion with the Independent Children’s Lawyer to provide whatever information she feels professionally able to provide about the progress of the therapeutic process in which the child and his parents are engaging as facilitated by her.

(D)The Independent Children’s Lawyer advised the Court of her intention that, if an Order is made for the paternal grandmother to supervise the child’s time with the father between now and the resumed hearing, she will speak with the paternal grandmother and provide her with information about what her supervisory role entails given that the purpose of supervision is to provide support to the child and to assist him to feel safe.

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 Rabkin & Edsall 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 BRISBANE

FILE NUMBER: BRC5702/2013

Mr Rabkin

Applicant

And

Ms Edsall

Respondent

REASONS FOR JUDGMENT

1. In this matter I make orders in terms of the minute signed by me and placed with the papers.  I do so for reasons which I will express in a moment.  For the benefit of those who appear by telephone, the orders that I have made will have the effect of suspending the operation of orders 5(a) and (b) of the orders made by Judge Howard on 18 December (as amended on 21 December 2015) and, in lieu thereof, provide the child spend time with his father during the gazetted Easter school holiday period from after school on Thursday 29 March 2018 to noon on Thursday, 5 April 2018, with the paternal grandmother to be responsible for his collection at the commencement of the time and return at the conclusion of the time. 

2. The second period of time that he will spend with his father will be from Thursday, 19 April 2018 to before school Tuesday, 24 April 2018, with the paternal grandmother again to be responsible for collecting him at the commencement of the time and returning him at the conclusion of the time to school.  His time with his father, pursuant to this order, will be supervised by the paternal grandmother; the father is not to use any physical discipline towards the child; and that the parents ensure that all court documents and other related documents, such as assessments, are kept in a secure place. 

3. A number of orders have been made by consent. In summary, these are that the parents attend upon, and cause the child to attend upon, Ms M for counselling as directed by her, and that, pursuant to section 121 of the Act, leave be given to the Independent Children’s Lawyer to provide Ms M with the Family Reports prepared by Mr O, the report of Dr P, the report of Dr Q, the section 11F Memorandum prepared by Ms R; the Independent Children’s Lawyer also has leave to provide a copy of the order made today to the school. Directions will issue in accordance with the timetabling that was the subject of discussion during the hearing late last week.

4. The Reasons I intend to give for the orders that I have just made have to be considered in the context of the chronology of events as I outlined them during discourse with the parties last week.  I do not intend to repeat that chronology but, rather, incorporate the same into the Reasons.  I also incorporate the discussion and discourse between the Court, the parties and the Independent Children’s Lawyer that occurred last week.  I note that, in making the orders I have determined are appropriate and in the child’s best interests at this point in time, I do so in the context that this matter will return before me for further hearing on 19 and 20 April, and that the parties are accorded, by virtue of the order I have made, liberty to apply to the court on the giving of 24 hours’ notice. 

5. I also have taken into account – as is reflected in the consent order I have made - that the parents are agreed that Ms M will continue to be involved in the matter and will continue to provide the child with therapeutic support. 

6. The order, as made, also contains a number of notations in terms discussed with the parties last week, including a request of Ms M that she provide to the Independent Children’s Lawyer whatever information she feels professionally able to provide about the progress of the therapeutic process in which the child and his parents are engaged, as facilitated by her. 

7. In arriving at the decision that I have, and concluding that the orders I have made are in the child’s best interests, I have taken into account and considered the submissions made on behalf of each of the parties. 

8. I have particularly taken into account the submissions made by Counsel for the Respondent mother, who urged that I act cautiously.  I have taken these into account and, whilst I have provided for a block period of time for the child to spend with his father, that time will be supervised by the paternal grandmother.  It is also slightly less than a complete period of half of the school holiday period, which would otherwise have occurred pursuant to the orders made by Judge Howard some time ago. 

9. I have taken into account that the mother’s evidence before the court included (by way of fairly contemporaneous recording) reference to the fact that, in February of this year, whilst in the father’s care, when the child became upset the father enlisted the support of the paternal grandmother:  in fact, the child spent time in her care. It appeared to me, particularly noting, as Counsel for the mother outlined in the course of her submissions, that the mother’s position was to concede and embrace the child’s time with the father recommencing and being supervised by the paternal grandmother, that I should not act to impose a significant restriction upon its duration, particularly given how long the arrangements have been in place to date. 

10. I note and record that the mother’s proposal was that the length of time the child be under the supervision of the paternal grandmother, and spend time with the father, occur on a weekly basis between 9 am and 5 pm each Saturday.  I have also taken into account that the orders made contain a prohibition on the father using any physical discipline towards the child. 

11. I take into account also that, whilst the parties supported the Independent Children’s Lawyer’s proposal for the making of what I will phrase as a “non-discussion clause”, I consider that this issue has already been dealt with by order number 14 of the orders made 18 December 2015.  It is for that reason I have declined to accede to the application to make a further order about that issue. 

12. I have also declined to make an order restraining the father from attending at the school which the child attends: on the basis that his partner’s children also attend at that school and it appears he is required on occasion to assist with their collection from and delivery to that school on occasion.  It is for that reason I have declined to make an order restraining him from attending.

13. It is good, as I remarked to the parties last week, that the child has returned to attend at school. I take into account the comments made by Ms R in the s 11 Memorandum (dated 21 March 2018 and prepared after engagement with the child earlier last week) about the importance of attempting to address the circumstances so as to minimise the prospects, in essence, of the child developing what she termed to be ‘anticipatory anxiety’ in relation to his interactions with his father. 

14. I have taken into account, as I said, the fact of the paternal grandmother appearing to be a person in the child’s life from whom he is likely to gain support and with whom, it appears (including on the mother’s case) he interacts well.  I take into account, therefore, that she will be well-placed, particularly given the Independent Children’s Lawyer’s intention to discuss with her the obligations associated with supervision and, no doubt, to ensure that she is aware that the purpose of the supervision is to provide support to the child and to assist him to feel safe in the time he is able to spend time with his father between now and the resumed hearing on 19 and 20 April of this year. 

15. For those very short reasons, which I consider sufficient to explain the rationale which underpins the orders I have made, orders will issue in the terms I have briefly summarised.  A copy of the orders will be forwarded to the parties by email this afternoon. 

16. A copy of the Reasons that I have just delivered, which I consider, take into account the requirements expressed by the Full Court of this Court in Goode v Goode[1] but, more importantly, it seems to me, in Banks[2] (which followed upon that decision) will be provided to the parties once settled. 

    [1] (2006) FLC 93-286.

    [2]          Banks v Banks (2015) FLC 93-637.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 26 March 2018.

Associate:

Date:  28 March 2018