Stamford and Blane - [2011] FMCAfam 145

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STAMFORD & BLANE

[2011] FMCAfam 145

FAMILY LAW – Interim parenting orders – case turns on its own facts.

Family Law Act 1975 (Cth)
Federal Magistrates Court Regulations 2000
Federal Magistrates Court Rules2001

Applicant:

MS STAMFORD

Respondent:

MR BLANE

File Number:

MLC 10491 of 2010

Judgment of:

Walters FM

Hearing date:

25 January 2011

Date of Last Submission:

25 January 2011

Delivered at:

Melbourne

Delivered on:

25 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr Weil

Solicitors for the Applicant:

Kennedy Partners

Counsel for the Respondent:

Mr MacFarlane

Solicitors for the Respondent:

Kelly & Associates Family Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Smith (Solicitor)

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid, Melbourne

ORDERS

IT IS ORDERED THAT:

On or before 4 p.m. on 31 January 2011:
(a)the mother must provide to the solicitor for the father copies of all email communications with the child [X] born in 1999 for the period from 1 July 2010 to the date of these orders; and
(b)the father must provide to the solicitor for the mother copies of all email communications with [X] for the said period,
with the expression "all email communications" to include all emails sent by the mother or the father, or by other persons on their behalf, and all emails received from [X].
All extant orders providing for [X] to live with the father, or for the father to spend time with or communicate with [X], be suspended until further order.
The father must deliver [X], or cause her to be delivered, to the mother by not later than 4 p.m. today, 25 January 2011.
Until further order, [X] live with the mother.
Save as provided for in paragraph 6 below, and until further order, the father neither spend time with nor communicate with [X]. Until further order, the father may communicate with [X] by telephone each Tuesday and Sunday at 6 p.m., with the father to telephone [X] on the mother's landline at that time.
The matter be adjourned to:
(a)16 February 2011 at 9.30 a.m. for mention only; and
(b)9 May 2011 at 10.00 a.m. for final hearing (with an estimated hearing time of 2 days).
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations 2000.
The wife do file and serve all further affidavits and other material to be relied upon by not later than 28 days prior to the commencement of the said sittings.
The husband do file and serve all further affidavits and other material to be relied upon by not later than 14 days prior to the commencement of the said sittings.
The independent children’s lawyer do file and serve all further affidavits and other material to be relied upon by not later than 7 days prior to the commencement of the said sittings.
All parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the commencement of the said sittings.
Both parties’ costs be reserved.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001, the Court certifies that it was reasonable for the parties to employ an advocate.
There otherwise be orders, by consent, in terms of the Minute of Orders & Directions signed by or on behalf of the parties and dated 25 January 2011 (“the Minute”).

IT IS DIRECTED THAT:

The Minute be placed upon the court file.
The solicitors for the wife do engross the Minute and deliver a clean, duly certified copy of the same (“the Copy”) to the Registry of this court within 7 days.
Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.

AND THE COURT NOTES THAT:

In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents;
(b)the payment of any applicable filing, setting down, hearing, mediation or enforcement fee or fees; and/or
(c)any other procedural issues,
the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.
Pursuant to s.65DA(2) & 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 10491 of 2010

MS STAMFORD

Applicant

And

MR BLANE

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

These proceedings concern the parties’ daughter, [X], who was born in 1999.
I do not propose to provide detailed reasons for the orders that I am about to make. I will state at the outset, however, that I have [X]’s best interests uppermost in my mind. She is just 11 years old.
I am required to make a determination as to what should occur in relation to the care arrangements for [X] for a very short period indeed. Among other things, I have decided that an independent children's lawyer should be appointed. The parties have agreed that that is an appropriate course of action. I have also decided that the proceedings should be brought back before me on 16 February 2011, at a time when the ICL will have been appointed and hopefully will be familiar with the material filed by the parties and otherwise before the court. It is also to be hoped that the ICL will have formed a view by then as to what might be in [X]’s best interests in the medium term, and as this matter progresses towards trial.
I have before me a report by Ms W, Psychologist. The report is dated 24 January 2011.
Mr P for the father has argued that, notwithstanding the material contained in the report which is highly critical of his client, Ms W's recommendation is for [X] to spend nine days per fortnight with the mother and five days per fortnight with the father. Mr P argued that, in the short period between now and the matter coming back before the court on 16 February, the court should adopt that structure as being in [X]’s best interests. I do not agree. The broad issue of the time that [X] should spend with each of her parents was not fully canvassed in the family report. Further, it seems to me that the issue was not discussed with the father; nor was it discussed with [X]. In other words, the change of arrangements from week about, as they currently adhere, to a nine/five or any other combination of days does not appear to have been discussed at length, in the way that one would ordinarily expect such an arrangement to be discussed in a family report.
I am cautious about adopting all the recommendations in Ms W's report at this point in time. Certainly, I am cautious about adopting them until I have heard the submissions of an independent children's lawyer. Having said that, it seems to me that the most important aspects of the report for the purposes of this interim hearing are the factual material recorded in the report and the observations and consequent opinions of a very experienced psychologist and report writer.
I need not go through all the many paragraphs of the report which raise concerns about the father’s behaviour in this case, and about his actions in involving [X] in the dispute between the parents regarding the school that she should attend. As I said during the course of submissions, the question of [X]’s schooling is one that should have been approached with calmness. The focus should always have been on what is best for [X].
Whilst the subject of the discussions was [X]’s schooling, and whilst [X] was the object of those discussions, [X] herself should have been insulated from responsibility for the ultimate decision. When she appeared to be taking sides in the manner that she did, and seemingly punishing her mother for disagreeing with what were alleged to be her views, or perhaps her father’s views, she should have been disciplined appropriately. Each party should have explained to her that, given that they could not agree, the matter would fall for the court to determine on the evidence before it. I agree with Ms W's comment in paragraph 67 of the report that, in many ways, the school issue has become irrelevant. It is certainly irrelevant today, as I determine what the arrangements for [X] should be from now until when this matter comes back before me on 16 February.
To large extent, it is the way that these parties have comported themselves in relation to that dispute, and the way in which (according to Ms W) the father has shamelessly involved his daughter in a wholly inappropriate manner, that informs the court as to what should or should not occur at this point in time. As I indicated earlier, I have [X]’s best interests uppermost in my mind. There are some very troubling comments in the report as to the likely impact on [X] if the father, in particular, continues to involve her in the way that he has seemingly done to date. I say "seemingly" because Ms W's evidence has yet to be tested by cross-examination or other means. The potential consequences of the father’s behaviour for [X] in the medium to long term are set out in the report. As I have said, those consequences are very troubling from the parents’ point of view, and also from the court’s point of view.
I am very conscious of the benefit to [X] of having a meaningful relationship with both of her parents. In the short period between now and 16 February, however, it seems to me that her relationship with each of her parents is not going to be adversely affected by the type of order that I will make. Indeed, and, in my opinion, what appears to be a most unhealthy relationship between [X] and her father at the present time should be severed for a limited period; [X]’s relationship with her mother should be reinforced for the same period. In that way, it will be made clear to [X] – and indeed to the father – that behaviour of this nature has its consequences, and that both parents are deserving of respect.
The need to protect [X] from physical or psychological harm, and from being subjected to or exposed to abuse, neglect or family violence, is also a factor that I must take into account, although in this case, "abuse, neglect or family violence" may be placing the court's concerns at too high a level. Nevertheless, Ms W has clearly referred to a danger of psychological harm occurring to [X] – if not from abuse, neglect or family violence, then from the inability of the father to recognise the pathology of his current relationship with his daughter and the inappropriateness of him involving her in adult matters. If that consideration is not directly relevant under section 60CC(2)(b) of the Family Law Act 1975, then it is clearly relevant under section 60CC(2)(m), because it falls within the category of "any other fact or circumstance that the court thinks is relevant".
I am not, for one moment, ignoring the matters that have been raised by [X] herself in the family report. Although I do not ignore them, I place very little weight on them at this stage for the reasons that Ms W has conveyed. They appear to be reflections of things that [X] has been told by her father in detailed discussions about schooling and no doubt, given the history of the matter (which is detailed in the affidavits), about other matters as well.
In my view, it is in [X]’s best interests to have a break from her father until this matter comes back before the court on 16 February. The break is not simply from the physical presence of the father (who, I am sure, would not dream of harming his child in any way), it is from the unsubtle influence of the father which, prima facie and on the basis of Ms W's report, has not been in [X]’s best interests. Clearly, the father's attempts to influence [X] in the recent past have not been in her best interests.
[X] needs to be insulated from that type of influence and pressure, at least in the short term. Where we go from there will depend on further submissions from each party, and from the independent children's lawyer. I do not close my mind to the possibilities that Ms W's concerns have been exaggerated in some way, or that, in the fullness of time, they will be found to be without weight. But I must act on the evidence that is currently before me, and I must act without fear and without favour, and I must act in [X]’s best interests.
In those circumstances, I propose to order that [X] be delivered back to her mother in such manner as the parties might agree, by not later than 4 pm this afternoon, and that she remain with her mother until further order of the court. I will look at the matter again on 16 February, but this time with the input of the independent children's lawyer. At that time, both counsel will be in a better position to argue about relevant interim arrangements.
It follows that the orders that I propose to make are interim orders only. To that extent, the orders are being made as a temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing. The orders reflect the extremely troubling evidence contained in Ms W's report.
In my view, the father should have minimal contact with [X] between now and 16 February, and [X] should be helped to understand that this is a decision that the court has made. Hopefully, the parties will agree to abide by it, whether they think it is the right decision or the wrong decision.
On the other hand, it seems to me that some limited communication between the father and [X] is appropriate. I am of the opinion that what might be perceived as secret communications are highly inappropriate in the context of this case, and in the light of the evidence before me. As a result, e-mail communication should not occur.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Walters FM

Date: 25 February 2011