Traynor and Lerner
[2018] FamCA 875
•15 October 2018
FAMILY COURT OF AUSTRALIA
| TRAYNOR & LERNER | [2018] FamCA 875 |
| FAMILY LAW – CHILDREN – interim orders – where the mother and Independent Children’s Lawyer seek that the time the child spends with the father be suspended pending the trial – where the mother and the Independent Children’s Lawyer seek that the child spend supervised time with the father to be supervised by the paternal grandmother – where the father opposes the application – where the Family Report contains a number of disclosures made by the child to the family consultant which indicate that the child is at risk of physical and psychological harm – where the family consultant has raised significant concerns as to the impact of the father’s behaviours on the child’s emotional wellbeing – where there is ongoing behaviour of the father that gives rise to the potential for both physical and psychological harm to the child – order made that until further order the child to spend supervised time with the father. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC |
| Goode & Goode (2006) FLC 93-286 |
| APPLICANT: | Ms Traynor |
| RESPONDENT: | Mr Lerner |
| INDEPENDENT CHILDREN’S LAWYER: | Kordell Lawyers |
| FILE NUMBER: | MLC | 1250 | of | 2013 |
| DATE DELIVERED: | 15 October 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 15 October 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Renwick |
| SOLICITOR FOR THE APPLICANT: | BJT Lawyers |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Pannifex |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Kordell Lawyers |
Orders
IT IS ORDERED UNTIL FURTHER ORDER
That the following orders be suspended:
(a) Order 4 of the orders made August 2015;
(b) Orders 3 and 8(a) of the orders made 6 June 2017; and
(c) Orders 5 and 6 of the orders made 29 August 2017.
That upon the paternal grandmother, MS LERNER, providing an undertaking to the Independent Children’s Lawyer that she will supervise time, the father spend time with the child X born … 2008 (“the child”) each alternate Sunday from 10.00am to 5.00pm (commencing 21 October 2018).
That the child otherwise live with the mother.
That the mother have leave to file a Further Amended Initiating Application with such application to be filed no later than 4.00pm on 22 October 2018.
That the time for the father’s compliance with order 5 of the orders dated 7 June 2018 (“the orders”) be extended to 4.00pm on 5 November 2018.
That the time for the mother’s compliance with order 6 of the orders be extended to 4.00pm on 12 November 2018.
That the Application in a Case filed 8 October 2018 be dismissed.
That pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That the Independent Children’s Lawyer have leave to issue a subpoena to produce documents directed to Ms B, Department of Human Services in respect of all reports in relation to the child X born … 2008.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Traynor & Lerner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 1250 of 2013
| Ms Traynor |
Applicant
And
| Mr Lerner |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
These proceedings come before the Court today for mention pursuant to orders made by me on 7 June 2018. That day, I made trial directions listing this matter for a final hearing to commence on 27 November 2018. Part of those trial directions provided for the preparation of a Family Report pursuant to s62G(2) of the Family Law Act 1975 (Cth) (“the Act”).
That Family Report was released to the parties on 26 September 2018. It is a report prepared by Family Consultant C. Following the release of that report, correspondence passed between the Independent Children’s Lawyer and the mother’s solicitors seeking modification of what were the then existing interim parenting arrangements for the father to spend time with the parties’ child, the child, who is aged ten and a half years.
There being no agreement between the parties as to the proposed amendments,, the mother caused an Application in a Case to be filed on 8 October 2018. That application seeks orders firstly for an abridgment of time to enable the matter to be able to be dealt with this day. Further, that application seeks orders for the suspension of previous orders made in respect of the father’s time with the child. Further orders were sought for the child to spend supervised time with the father each alternate Sunday from 10.00am to 5.00pm.
That application is supported by the mother’s affidavit sworn 5 October 2018. The mother also relies upon the Family Report to which I have already referred, dated 26 September 2018.
When the matter was called on at the commencement of the day, the father did not appear. In the circumstances, the matter was stood down to enable inquiries to be made of the father to ascertain whether he intended to participate in the hearing. I directed the mother’s solicitor to forward an email to the father indicating that the matter would be stood down till 2.15pm and that I would likely deal with the application at that time. Messages were conveyed by the father to the Court and ultimately the father appeared at Court shortly after 3.00pm.
The mother’s application is supported by the Independent Children’s Lawyer. The father, upon his attendance at Court, indicated that he opposed the mother’s application. It became clear during the course of discussion that the father had not received the Family Report of Ms C. Accordingly, the matter was stood down to enable the father to read and consider that report. As a result, the hearing did not commence before me until approximately 3:45pm.
Discussion
The submissions made on behalf of the mother are as follows. She firstly points to the orders that were made by the Senior Registrar on 6 June 2017. Those orders included injunctions against the father designed to safeguard the child when in his care. Those orders were orders made by consent. It is the mother’s case that the father has not complied with those orders.
Paragraph 3 of the orders provides for the time to be spent between the child and the father. That time is a period of four nights per fortnight, firstly from the conclusion of school Thursday to 5.30pm Sunday each alternate week, and in the following week from the conclusion of school Thursday to the commencement of school Friday.
Paragraph 4 of the interim orders makes provision for the father to be restrained from taking the child to any licensed premises during the father’s working hours with the child, and attending the school outside his spend time periods with the child, save for events to which parents are ordinarily invited. Paragraph 5 of the orders also makes provision for the father or an adult known to the child to be present during all spend time periods between the father and the child.
The submission made by the mother is that in order to understand those orders it is necessary to consider the notations contained within the orders. At Notation C of those orders it states:
The parents agree that part of the rationale for order 5 herein is to prevent the father from:
a. Leaving the child unattended; and
b. Engaging the child in trust exercises requiring the child to travel without the direct presence of an adult.
The mother’s concern that the father was leaving the child unattended was the catalyst for the commencement of the current proceedings, it being alleged that the father had left the child unattended in a supermarket.
The mother submits that the information reported to the family consultant by the child (and set out in the Family Report) indicates that, notwithstanding the orders of 6 June 2017, the father has not complied with them and the child has been placed at risk of harm. Specifically, the mother relies upon paragraphs 42 onwards of Ms C’s report in support of that submission.
At paragraph 46 of the report Ms C notes the child’s comment to her that she “hardly ever [goes] to work with dad and it’s just for a short time if he has to drop something off, and when I told him I don’t like chopping the chicken for the dog with the axe, I didn’t have to do it any more”. It is reported that the father required the child to use an axe to chop chicken carcasses for the purposes of preparing food for her dog on two or three occasions.
The father in his submissions concedes that the child is required to take responsibility for feeding her pet. The father concedes that the child was responsible for preparing the dog’s food, that she did handle chicken carcasses and that as part of that, she used what he described as a hatchet to chop the chicken carcass.
Ms C notes at paragraph 46 that the child found the requirement that she handle the chicken carcass to be abhorrent and that she was required to do that on two, perhaps three, occasions. Ms C expresses concerns about that activity, noting that such requirement has the potential to attune the child to violence and that she is expected to comply with her father’s demands regardless of her own natural instincts or abhorrence to the task.
At paragraph 47 of her report, Ms C reports that the trust exercises as described in the notations to the June 2017 orders are continuing. Specifically, there were two events noted in her report at paragraph 49. She describes the child’s report of having to walk home alone from Kmart after she went there to spend her pocket money. The father required that the child walk home alone after he had taken her there.
The second incident referred to in the report was an occasion where the child was unable to recall a sentence in a passage that she was required by her father to memorise. When she was unable to complete that passage, the father required her to get out of the car and walk the rest of the way home. At paragraph 50 of the report, Ms C noted that the child said she felt scared and worried, she did not know the suburb, and felt she could not ask anyone for help.
There are also indications by the child noted in the report, that the father has taken the child to his place of work notwithstanding orders prohibiting him from so doing.
During the course of his submissions, the father conceded that the child had walked home from Kmart. He takes issue with the allegations in the report in respect of requiring her to get out of the car and walk home when she was unable to recall the passage of text. It is his submission that the child was required to walk only a distance of some 10 metres.
The father has placed no evidence before the Court in response to any of these matters notwithstanding the trial directions requiring him to file trial affidavits or the fact that he had been served with this application.
It is submitted on behalf of the mother that the child is at risk of both physical and emotional harm in the father’s care and it is on this basis that she seeks interim orders.
In the circumstances the mother submits that it is necessary that there be supervision to safeguard the child. In support of that submission, the mother relies upon paragraph 68 of Ms C’s report where she notes:
In principle, the father’s intent is sound, however, his parenting style impresses as being rigid, and does not allow [the child] to grow and develop at her own pace, within the normative parameters of her age and developmental stage. His expectations of [the child] are inconsistent with her age and developmental stage. Not only do his actions pose a risk to the child’s physical safety, her emotional and psychological wellbeing have been adversely impacted.
The relevant principles in relation to parenting and interim proceedings are well settled by the Full Court in the decision of Goode & Goode (2006) FLC 93-286.
Section 60CA of the Act requires that I regard the best interests of the child as the paramount consideration. Section 60CC of the Act outlines the primary and additional considerations that I must take into account in determining the child’s best interests. The parts of s 60CC of the Act which are particularly relevant in this matter are those primary considerations, being firstly, the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a) of the Act) and secondly, the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence (s 60CC(2)(b) of the Act).
Section 60CC(2A) of the Act provides that in applying the considerations set out in sub-s (2) the Court is to give greater weight to the considerations set out in paragraph (2)(b), that is the considerations with respect to the need to protect the child from physical or psychological harm.
The submission made on behalf of the mother, which I accept, is that there is ongoing behaviour of the father that gives rise to the potential for both physical and psychological harm for the child. The report of Ms C contains a number of disclosures made by the child to Ms C which indicate that the child is being placed at risk of such harm.
The father concedes, during the course of his oral argument that some of the matters reported by the child have, in fact, occurred, and in particular, I note the concessions made by the father both with respect to the child’s handling of the chicken carcasses and, further, his concession that the child was required to walk home from Kmart. It is his perception that this was an appropriate activity, that it was something that the child agreed to undertake. I do not agree with the father’s perception. I do not accept that it is appropriate for a 10-year-old child to be walking home unaccompanied from a shopping centre, particularly given the child’s admission to the Family Consultant that she did not feel ready to walk home along (par 47 Family Report). Ultimately, these matters will be considered and determined by a trial judge upon a testing of the evidence. What I am required to do at this interim hearing is to ensure the child is protected from such risk.
Previously orders were made by consent so as to safeguard the child from harm. Those orders required the father to be in attendance, or that there be an adult in attendance when the child is in his care. That the father perceives that it is appropriate for the child to walk home from shopping centres by herself or to eject her from a car because of some perceived misbehaviour or failing, in my view is contrary to what was required pursuant to the orders made on 6 June 2017.
It would seem from the report of Ms C that such conduct has been a source of concern and distress to the child and that, as such, Ms C has raised significant concerns as to the impact of those behaviours on the child’s emotional wellbeing, not to mention concerns as to her physical wellbeing when she is left unattended in such circumstances. Having regard to those matters, I am satisfied that it is in the child’s best interests that there be orders made as sought by the mother and as supported by the Independent Children’s Lawyer.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 15 October 2018.
Associate:
Date: 15 October 2018
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