Reisner and Reisner

[2009] FamCA 258

FAMILY COURT OF AUSTRALIA

REISNER & REISNER [2009] FamCA 258

FAMILY LAW – CHILDREN – Time spent with Father – Injunction preventing the child spending time in the home of the paternal grandfather – Injunction amended – The child is injuncted from having contact with the paternal grandfather – The father may stay at the paternal grandparent’s house in absence of the grandfather
Family Law Act 1975 (Cth)
APPLICANT:	Ms Reisner

RESPONDENT: Mr Reisner

FILE NUMBER: BRC 1065 of 2007

DATE DELIVERED: 18 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 18 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Cooper
Barry & Nilsson Solicitors

SOLICITOR FOR THE RESPONDENT: Mr Zande
Zande Law

INDEPENDENT CHILDREN'S LAWYER Ms Rayment
Legal Aid Queensland

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The injunction contained in paragraphs (6) and (7) of the Order of Federal Magistrate Baumann dated 31 July 2007 be discharged.

2. The Father not to bring the child … born … October 2002, into direct or indirect contact with the paternal grandfather, Mr Reisner Snr.

3. The Father shall use his best endeavours to ensure no other person brings the child into direct or indirect contact with the paternal grandfather, Mr Reisner Snr.

IT IS ORDERED THAT:

1. The proceedings be adjourned to case management review to 10.00 am on 12 June 2009 at the Brisbane Registry of the Family Court of Australia.

2. The notice of objection to a subpoena issuing directed to the P Hospital for any records relating to the paternal grandfather, Mr Reisner Snr is dismissed.

3. Leave given to all parties to inspect subpoenaed material with leave given only to the Independent Children’s Lawyer to copy without further Order of this Honourable Court.

4. Pursuant to s 62B and s 65DA(2), 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 document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Reisner & Reisner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC1065 of 2007

MS REISNER

Applicant

And

MR REISNER

Respondent

REASONS FOR JUDGMENT

1. The dispute in this matter relates to the child born in October 2002. 

2. The mother, I am informed, resides in the Brisbane area down near the Bay.  The father resides at S which, from my sense of geography, is about halfway to the Sunshine Coast.

3. The father's parents reside at B which is approximately halfway between the two addresses, although probably closer to the mother’s address.

4. The orders which have been in place since 2005 provide for the father to see the child five nights out of 14.  This is by alternate weekend arrangement from Friday afternoon until Monday morning, and then from each Wednesday evening.  What the father has done in the past is arrange to stay with his parents at the B address when he collects the child from school on Wednesday afternoon and then returns her to school on the Thursday morning. 

5. The father runs his own business in conjunction with his father and he says to have to travel back to S makes it too difficult to do it for a Wednesday pick up and Thursday drop off. 

6. The matter is complicated by the fact that in about January 2007 the mother made allegations that the child had been sexually abused by her paternal grandfather.  Charges were laid.  The matter proceeded to trial in the District Court where the Crown entered a nolle prosequi withdrawing the charges.

7. In about July 2007 the mother had ceased the father's contact with the child. When the allegations were made the matter came before the Court in July 2007 and paragraphs 6 and 7 of the orders issued by Baumann FM were the father be restrained from bringing the child within 100 metres of the home of the paternal grandfather, being the B property, and from otherwise bringing the child into any direct or indirect contact with the paternal grandfather.

   ORDER DELIVERED

8. The father says that once these injunctions were put in place he made arrangements to stay with friends of his in the B area generally.  Those friends are now relocating out of Brisbane.  Their home is to be sold and he has no friends or family that he can stay with, and he asks that he be permitted to stay with the child at the B property but he will ensure that the paternal grandfather moves out on each such occasion.

   RECORDED:  NOT TRANSCRIBED

9. For this reason the father seeks that the injunction be removed.  The application is opposed by the mother and that opposition is supported by the independent children's lawyer.  One submission put forward is that it may affect the mother's capacity to parent.  I observe that the mother does appear to be of an anxious disposition but, to my mind, if that be the case the mother can seek appropriate counselling or other treatment. 

10. The further submission was that the father is attempting to pre-empt the allegations.  I do not follow the logic of that in the sense that the father said an injunction restraining him from bringing the child within 100 metres of the property is meaningless in the context where there is already an injunction that he cannot bring the child, either directly or indirectly, into contact with her paternal grandfather.  If, for example, the paternal grandfather was overseas, what is the problem?

11. Another submission is this was the scene of the alleged abuse.  I note that it appears the allegations relate to one occasion more than two years ago.  The allegation is of a serious nature I accept but it is not the most serious form of abuse that we come across. 

12. The mother's further complaint is that she cannot be assured that the father would act protectively.  In other words, that he would be quite dishonest and bring the child into contact with the paternal grandfather.  For a six-year-old girl I would assess that as sure night follows day she would report back the fact that she had seen her paternal grandfather.

    ORDERS DELIVERED

13. So those orders will be in place.  I expect the father to comply with that.  I expect that there will cooperation with the paternal grandfather, that he moves out of his own residence each Wednesday afternoon for that evening.  The view that I take is the child has told Ms L she had no complaints, no concerns about spending time with her father or the paternal grandparents.  They played cards and engaged in other activities.  There are no concerns there.

14. I appreciate very much the difference between the criminal standard of proof and the civil standard and the even lower standard of unacceptable risk.  The injunction related to premises but they should relate to the person.  I do not believe the child would be traumatised by a single incident two years ago.  She goes back to a house where she appears to have visited frequently and appears to have had fond memories as related to Ms L.  So the orders will issue on today's date.

15. I will not make a specific order that there be a psychiatric examination, but I note that that is to be done.  I will adjourn this matter through to 12 June.  Can I indicate that I will adjourn that on the papers if a psychiatric report is not available by that time.

    RECORDED:  NOT TRANSCRIBED

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate

Date:  18 March 2009