Saunders and Byron

[2008] FamCA 677

FAMILY COURT OF AUSTRALIA

SAUNDERS & BYRON [2008] FamCA 677

FAMILY LAW – CHILDREN – with whom a child spends time – where mother unilaterally altered physical arrangements for children by keeping them in her care – concerns about mother’s parenting skills and children’s physical safety and psychological well-being – children to be returned to father and mother restrained from communication or contact with children – Orders made to that effect

APPLICANT: Ms Saunders

RESPONDENT: Mr Byron

INDEPENDENT CHILDREN’S LAWYER: Ms Berck

FILE NUMBER: BRC 1631 of 2008

DATE DELIVERED: 11 June 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 11 June 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Andersen, Solicitor appearing for the Applicant Father

SOLICITOR FOR THE RESPONDENT: Ms Khushal, Solicitor appearing for the Respondent Mother

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Berck, Solicitor appearing as the Independent Children’s Lawyer

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The children, D, born … August 1993, C, born … October 1994 and B, born … February 1998 to live with the Father.

2. The said children to be returned to the Father today.

3. The Father is to collect the children today as follows:

   a.the child, D from the M High School;

   b.the child, C from the L Central Police Station by 5.00 pm today; and

   c.the child, B from the W State School.

4. The Mother, or any person on her behalf, is restrained from spending any time with nor have any form of communication with the said children.

5. The Mother, or any person on her behalf, is not to approach the children’s schools or any venue where the children may be from time to time.

IT IS ORDERED THAT:

1. The Applicant Father and Respondent Mother attend a psychiatric assessment at such times and places and on such terms as may be arranged by the Independent Children’s Lawyer.

2. The said children and Father (if required) to attend counselling with Mr A, Psychologist, L Child & Youth Mental Health Service as arranged by the Independent Children’s Lawyer, Mr A or the Father.

3. 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.

4. The proceedings be adjourned to the Judicial Duty List at 10.00 am on 7 July 2008.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC1631 of  2008

MR SAUNDERS

Applicant

And

MS BYRON

Respondent

REASONS FOR JUDGMENT

1. For reasons that he gave in November 2003, Jordan J, after a three day trial made orders that the three children of the parties live with their father and have contact with their mother on alternate weekends and half school holidays.  The father was to have responsibility for the children.  That state of affairs has continued from late 2003 through to late 2007. 

2. The children, the subject of the proceedings are D born in August of 1993; C born in October 1994; and B born in February 1998.  In about November of last year, the mother, unilaterally, altered the physical arrangements for the children by keeping them in her care.

3. She did not seek to approach the Court to have the orders altered.  There was an interim parenting agreement as a result of a Legal Aid conference and that document is dated December of 2007.  It concedes the children are to live with the mother.  The children are to spend time with the father, the time spent to be supervised by the paternal grandmother. Changeover is to take place at the L Police Station.

4. The father instituted proceedings in February 2008.  The proceedings were before the Court back in February and an order was made for a report to be prepared and that has now been prepared by Ms F.

   RECORDED  :  NOT TRANSCRIBED

5. Ms F’s report expresses many concerns about the mother's parenting skills and she expresses serious reservations about the well-being of the children, their physical safety and their psychological well-being.  At page 20 of her report she recommends:

   Should the Court concur with my assessment, it is respectfully recommended that the children be returned to live with the father immediately and that a moratorium be imposed for a number of months before the children begin spending supervised time with the mother.

6. The children, she recommends, also engage in counselling with Mr A from the Child Youth Mental Health Services immediately.

7. The Independent Children's Lawyer on today's date supports the recommendations made by Ms F and urges the Court to make an order that the children be returned to their father and that there be a restraining order that the mother is to have no communication or contact with the children at her place, at school or any other venue that the children may be located.

8. The mother on today's date, through her experienced legal representative, concedes that it is appropriate to revert to the orders of Jordan J made some four and a half years ago, that is the children will go back to living with their father as long as the mother can see them on alternate weekends.

9. I accept that the mother's legal representative only came into the matter on yesterday's date but I assume that that concession she has made is done on instructions and the concession would enable me to conclude the children are not at risk in any way in their father's care otherwise why would the mother be making that concession.

10. There were allegations raised of sexual abuse.  I am satisfied the children are not at risk in their father's care.  I have read Ms F’s report in that regard. 

11. The two older children are currently at M High School, although C is at home today.  The child, B, is attending W State School.  It is not appropriate for parties, at any time, to act unilaterally in open defiance of Court orders.  If ever there is an urgent situation where it is called for it is incumbent on parties to immediately apply to the Court to rectify the orders to give appropriate legal sanction to what has been done.  The Court can then take control of the situation.

12. In the current circumstances, what I propose to do is this:  I will accede to the recommendation of the Independent Children's Lawyer. 

    ORDERS DELIVERED

13. The children may be collected by the father from school.  Orders will issue by this afternoon. 

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  11 June 2008