RABY & FISK

[2012] FamCA 508

FAMILY COURT OF AUSTRALIA

RABY & FISK [2012] FamCA 508

FAMILY LAW - CHILDREN – interim orders – where the father seeks orders for the children to be delivered into his care immediately – where the matter has a long and complex history – where the Court was of the view that a cautious approach ought to be adopted pending trial – where the Court held that it was not in the best interests of the children for their current arrangements to change – orders for the children to continue residing with the mother – no orders for the children to spend time with the father.

Family Law Act 1975 (Cth) s 60CC

Goode and Goode (2006) FLC 93-286

APPLICANT: Mr Raby

RESPONDENT: Ms Fisk

INDEPENDENT CHILDREN’S LAWYER: Ian Charman & Associates

FILE NUMBER: BRC 7595 of 2008

DATE DELIVERED: 27 June 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 27 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Lewis

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Charman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ian Charman & Associates

Orders

1. The matter is referred to a Registrar of this Court to prepare the matter for listing for final hearing as soon as a date is available.

2. Paragraphs 4, 7, 8 and 10 of the Orders of the Federal Magistrates Court dated 9 February 2010 are suspended pending the final trial of this matter.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Raby & Fisk 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 ADELAIDE

FILE NUMBER: BRC 7595 of 2008

Mr Raby

Applicant

and

Ms Fisk

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an interim hearing in relation to a matter which concerns the welfare of three children, T, who was born in January 2002, S, who was born in September 2003 and B, who was born in February 2006.  As is clear from the file there have been ongoing proceedings in the Federal Magistrates Court some time ago and matters transferred to this Court.  Originally there was a consent order in relation to the children’s issues in February 2010, however, the matter has now been reopened and final orders are yet to be determined in the disputed matter.

2. What I have before me this morning on an interim application is the father seeking an order for all three children to be handed over to him and from the Bar Table this morning he requests that the officers of the Police or Court recover the children in the absence of the mother preferably and be handed over to him.  That is opposed by counsel for the mother and the Independent Children’s Lawyer. 

3. To determine the interim application it is necessary for the Court to take into account, as set out in the well-known authority of Goode and Goode (2006) FLC 93-286, even on interim issues the factors which are set out in section 60CC of the Family Law Act 1975 (Cth) (“the Act”). The primary factors are significant in this matter. They are; the benefit to the children of having a meaningful relationship with both of the parents and the need to protect the children from any physical, psychological or even emotional harm.

4. The difficulty on an interim matter such as this is particularly highlighted by the report which is now available from Ms J, a Clinical Psychologist, who has prepared the report at the request of the Independent Children’s Lawyer after having viewed the large number of documents on file and interviewed the parties and the children.  I have read the report and taken into account all the factors in that report.  The conclusion is that the writer is not able to determine which parent is the parent responsible for the difficulties and concludes the report on page 15 by saying:

   Which parent that should be is a matter of credibility that can no longer be postponed.

5. It is clear from the alternatives in the psychologist’s report that the Court requires to determine significant facts before coming to a conclusion which can determine what is in the long-term best interests of the three children. 

6. The report itself says, significantly, that the writer’s previous report aimed to avoid an outcome where there was the complete exclusion of one parent, but this report says, unfortunately, that has not happened.  The report refers to the parents seemingly: 

   …unable to extract themselves from conflict that has endured for more than 15 years.

7. The report also says: 

   Ultimately this matter bridges a difficult gap between an assessment of parental capacity, mental health, domestic violence and child protection.  Even if based upon each of the parents’ reports of their own behaviour both have exhibited difficulty managing their own needs and emotion without resorting to unhelpful reactions.  At this stage the writer is prepared to point to any continuing intervention and assessment of the children as constituting a form of emotional abuse in and of itself.  The work that needs to be done here belongs to the parents, not the children.

8. Then it concludes, as I have already said:

   The writer has no information to suggest that either parent cannot in complete isolation parent the children adequately.  Which parent that should be is a matter of credibility that can no longer be postponed.

9. The report deals with the history of the matter and what has, in fact, been the case in relation to particularly the two eldest children, who are progressing well in the care of the mother and have not spent time with the father for some significant period of time. 

10. In relation to the child, B, there are different factors set out as to the statements that B is making and B’s behaviour and how that may or may not have been influenced. 

11. Unfortunately, on the material before the Court (which are affidavits setting out completely opposing positions of each of the parties) the Court is not able to determine the factors which would enable the Court to say that it would be in the best interests of the children for their current arrangements to change.

12. Weighing carefully those factors, however and the factors that all need to be considered under section 60CC, I am of the opinion that the cautious approach which is recommended by the psychologist is the approach that needs to be taken pending the trial. Therefore I do not make any order for the removal of the children from the care of the mother or for the father to spend any time with any of the children.

13. The orders will, therefore, continue to be the orders that provide for the three children to live with the mother and spend no time with the father and that the matter be referred to a Registrar of this Court for listing for trial as soon as a date is available.

14. The specific orders needed to be made, therefore, would be to leave paragraphs 4, 7, 8 and 10 of the Orders of the Federal Magistrates Court of 9 February 2010 suspended pending trial.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 27 June 2012.

Associate: 

Date: 5 July 2012