Rose and Barwon

[2010] FamCA 354

FAMILY COURT OF AUSTRALIA

ROSE & BARWON [2010] FamCA 354

FAMILY LAW – CHILDREN – With whom a child lives – Interim parenting orders by consent – Whether Rice v Asplund principles apply – To be determined after preparation of Family report – Legal Aid conference requested

APPLICANT: Mr Rose

RESPONDENT: Ms Barwon

FILE NUMBER: BRC 1372 of 2009

DATE DELIVERED: 29 April 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 29 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge of Counsel appearing for the Applicant Father

SOLICITOR FOR THE APPLICANT: Journey Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Lyons of Counsel appearing for the Respondent Mother

SOLICITOR FOR THE RESPONDENT: Neilson Stanton & Parkinson

Orders

IT IS ORDERED THAT:

1. The proceedings be adjourned for case management review and trial directions to 9.30 am on 4 June 2010 at the Brisbane Registry of the Family Court with the parties given leave to appear by telephone.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:

1. The children, D born … March 2001 and T born … August 2002, are to spend time with their Mother as follows:

   a.from 4.30pm Friday 7 May 2010 to 3.00pm Sunday 9 May 2010 with changeover at O Information Centre on the Friday and U on the Sunday, with the Father’s sister, B, to be present on the Sunday as the Father’s representative;

   b.from 4.30pm Friday 28 May 2010 to 3.00pm Sunday 30 May 2010 with changeover at O Information Centre on the Friday and V on the Sunday; and

   c.Mr W (maternal step-grandfather) is at liberty to telephone the children between 7.00pm and 7.30pm on both Tuesday 4 May 2010 and Tuesday 11 May 2010.

IT IS FURTHER ORDERED THAT:

1. Pursuant to Section 62G of the Family Law Act 1975 a Family Report is to be prepared by Ms D, Family Consultant.

2. The Family Consultant has leave to read any filed documents together with any documents produced on subpoena.

3. The parties shall attend and ensure the children attend all necessary appointments for the preparation of the Family Report.

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.

NOTATION:

A.It is requested Legal Aid Queensland convene a Legal Aid conference directed to settling outstanding issues between the Mother and Father.

B.It is further requested that the Family Consultant if possible attend at the residences of the parties for the purposes of preparation of the Family Report.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1372 of 2009

MR ROSE

Applicant

And

MS BARWON

Respondent

REASONS FOR JUDGMENT

1. The court is asked to deal with parenting issues in relation to two young children, D, born in March 2001, and T, born in August 2002.  The starting point for my present consideration is an order of Baumann FM of

   
   

   28 July 2005.  Final orders were made at that time after a two day trial in which the parties were legally represented.  The Court was assisted by the appointment of an Independent Children's Lawyer, and the effect of his Honour’s orders were that the children were to reside with the father and the parties were to have joint responsibility for the children’s long-term care.  There was provision for regular phone contact, alternative weekend time, half holidays, and various other orders.  The father was to make a contribution to the mother’s travelling expenses.

2. There are two files in this matter - one is the Federal Magistrates Court’s file, and, subsequently, the matter was transferred to this Court.  I’ve read the reasons for judgment of Baumann FM of July 2005.  I am informed, and for present purposes I accept that on the day of the Federal Magistrate’s decision, or the following day - it doesn’t greatly matter - the mother made an accusation that one of the children or both children had been abused.  Those allegations were found to be unsubstantiated.  At the time of the making of those orders in 2005, the mother was residing in the U region and the father was in O.  I’m told the travelling time between the two homes was about 90 minutes.  As I’ve noted, the orders provided for weekend time, and this was being exercised.

3. It appears that in either late 2008 or early 2009, the mother, for whatever reason, moved to V.  The travelling time, then, from O to V, I am informed, is about 2 hours and 45 minutes each way.  There must have been some exercise of weekend time continuing after the mother’s move.  Agreement to vary the order was reached at a conference convened on 12 February 2009 - it was a telephone link-up, as I understand it.  Those draft orders - and they were signed by the parties, but the orders were never perfected by way of being filed with the court or appearing in any court to regularise the orders.  In effect, they were made to make allowance for the increased travelling time, and so the arrangements were to be reconfigured.

4. The mother collected the children on 13 February, the very day after she had signed these consent orders, and she immediately made a further allegation that young T had been physically abused by his step-mother, Ms Rose.  Suffice it to say, there was an air of unreality to some of the allegations being made, such that D was being urged by her father to drown T in the local dam. 

5. The Federal Magistrate heard the matter in February of 2009, after the mother’s allegations surfaced, and he reversed the arrangements so that the children live with the mother in the V region, and they attended school there for a period of six months.  He then transferred the matter to this Court.  There was an unacceptable delay in this Court.  I don’t need to go into that any further, but it did not come into my list until about August of that year.  For reasons I gave at the time, I ordered that the children be returned to their father and that the orders of 2005 should be complied with.

   RECORDED : NOT TRANSCRIBED

6. Counsel for the father submits that it’s not simply a question of examining the previous court orders.  He refers to the signed draft consent orders of

   
   

   12 February 2009 after the parties were legally represented and the further orders of January this year, which the mother signed, but, for reasons I gave at the time, I was not prepared to make.  My order of August 2009, again, was only an interim order for the return of the children to the father’s care.  The view that I take in this matter, although I want further time to consider it and do more research, is that the operative order to be considered for the application of the Rice v Asplund principles is the July 2005 order.  I have to assess the change to the circumstances since that date.

7. As I say, the order of 12 February arrangement was never perfected because of the allegations and the other circumstances at that time.  I followed my usual practice in January this year of saying to the mother, when orders were being handed up, did she agree to these orders being made and were they made of her own free will, and she expressed in the negative, that she wanted the children to live with her.  I’ve perused the report of Ms D, and she adverts to the poor communication between the parties.  I have, once again, read Baumann FM’s reasons. 

8. For the mother, there were written submissions produced, and it was contended that the changed circumstances included the dysfunctional communication between the parties, and reliance was placed on Ms D’s report in that regard. Certainly, it appears the relationship between the parties has deteriorated.  I’m not really in a position to say to what extent or whether there was reasonable communication between the parties prior to February 2009, but it’s also contended a changed factor is the inability of the father to foster a relationship with the mother.  That is an issue that’s raised.  If the father is hostile - there’s a question of whether he accepts or denies that, but it could be argued that he has some justification - he would have been hostile because of the mother’s failure to protect the child, T, from the physical abuse to which he was subjected back in 2005, the mother covering up a factual situation at that time, the false allegations immediately after Baumann FM’s decision, the false allegations in February 2009, and so forth.

9. But one factor which was also adverted to, not in the written submissions, but during the course of discussion, is that it appears life in the mother’s household is now far more stable than the somewhat chaotic, unstable existence detailed in Baumann FM’s reasons of July 2005.  He adverts at paragraph 19 to the mother smoking in the presence of the children when they are asthmatic, failing to maintain proper dental hygiene, failing to arrange for the child, T, to have scheduled immunisations, and lack of supervision.  It appears that around that time there was a good deal of intervention in the mother’s parenting by the Department of Child Safety.  I’m informed that there’s been no intervention by the Department in recent years.

10. I’m certainly sympathetic to the father’s position, particularly insofar as he’s not legally aided and the mother now is, and he says that if there’s no criticism of the actual parenting, why should he have to litigate and be put to that considerable expense.

11. What I propose to do is this - because of my uncertainty in the matter, I propose to order the preparation of a full family report.  I propose to request that Legal Aid Queensland convene, yet again, a conference, and I would urge the parties to endeavour to settle.  I will adjourn to a date in June for review of this matter.  I’m not dismissing the application based on the principles in Rice v Asplund.  I will await the family report as to whether the mother’s household is in fact a stable environment.

12. If at all possible and budgetary considerations allow, I would request that the family report writer be able to attend at the residences of the respective parents.  That may not be possible because of staff shortages and things of that nature.  To save expense, the father may care to appear by phone at that time, if he wishes to. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  29 April 2010