Walker and Baldwin

[2013] FamCA 673

FAMILY COURT OF AUSTRALIA

WALKER & BALDWIN [2013] FamCA 673

FAMILY LAW – CHILDREN – Where final parenting orders had been made in the Federal Magistrates Court (now the Federal Circuit Court) – Where the Mother applies to discharge all previous orders – Where the Father seeks to have the Mother’s application summarily dismissed relying on the “rule” in Rice v Asplund (1979) FLC 90-725 – Where on an interim hearing disputed issues of fact cannot be resolved and the Court cannot be satisfied that there has not been a material change of circumstances – Father’s application to dismiss the application of the Mother adjourned to the trial judge

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725

APPLICANT: Ms Walker

RESPONDENT: Mr Baldwin

FILE NUMBER: BRC 3973 of 2008

DATE DELIVERED: 9 September 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 3 June 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Bradley Munt & Co. Solicitors

FOR THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The Father’s application to dismiss the application of the Mother be adjourned to the trial judge.

2. Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), the interests of the child, B born … 2007 be independently represented by a lawyer and it is requested that Legal Aid Queensland arrange an Independent Children’s Lawyer as soon as practicable, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Brisbane.

3. The applications be adjourned to a date to be fixed before the Registrar for directions.

NOTATION:

It is requested that Legal Aid Queensland consider appointing the same Independent Children’s Lawyer as has been appointed to represent the interests of the Father’s children in the pending proceedings in the Federal Circuit Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walker & Baldwin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:

Ms Walker

Applicant

And

Mr Baldwin

Respondent

REASONS FOR JUDGMENT

1. These parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern B (“the child”) born in 2007, who is now six years of age.

2. The child’s mother, Ms Walker (“the Mother”) was born in 1968 and is now 44 years of age.

3. The child’s father, Mr Baldwin (‘the Father”) was born in 1972 and he is now 41 years of age.

4. By her substantive Initiating Application, which was amended by the filing of an Amended Initiating Application on 22 May 2013, the mother seeks, inter alia, that all previous Orders regarding the child be discharged; that he reside with the Mother; that she have sole parental responsibility; and that the child’s face-to-face time with the Father occur at the C Town Contact Centre.

5. The application before me is the Father’s Application to dismiss the Application of the Mother summarily. The Father relies upon what is conveniently described as the rule in Rice v Asplund[1] and authorities following Rice v Asplund. In effect the Father contends that there has been no material change in circumstances since previous final parenting Orders were made by consent on 18 April 2012 as to justify the Court entertaining the Mother’s current substantive application.

   [1] (1979) FLC 90-725.

6. The matter has a long and convoluted history.

7. In summary, the parties met in September 2005 and formed a relationship at this time but it would seem they never fully lived together, taken from the contents of an earlier family report prepared by Ms D of 24 March 2012. It would seem that such relationship of the parents had ceased around 11 September 2007.

8. As noted, the child was born in 2007 and he is the only child of the relationship.

9. The Father has two children from a previous relationship, namely E who is about 15 years of age and F who is about 14 years of age. E suffers from Asperger’s Syndrome and has a history of difficulty in managing his aggressive impulses.

10. The Mother has one child from a previous relationship, G who is now approximately 13 or 14 years of age.

11. It seems that initially after the parties ended their relationship in September 2007 the Father visited the child often, but because of the child’s tender age, the parents apparently agreed that the Mother would be present at all of these visits.

12. It would seem that parental co-operation began to decline about three months later. This reached the point that by mid-2008 the Father was articulating concerns about the child receiving excessive medication whilst the Mother raised concerns that the Father had sexually abused the child. Neither parents’ concern appears to have been substantiated by any relevant agency as at that time.

13. In September 2009, the parents consented to Orders which provided for the Father to spend four hours every Thursday and Friday and three hours every second Saturday with the child. It was anticipated that these hours would increase progressively, but it does not seem that ever occurred.

14. The following two years appear to be littered with allegations and notifications to the Department of Communities, Child Safety and Disability Services (“the Department”) made by both parents. Eventually it seems that the Department made a finding of substantiated emotional abuse because of the child’s exposure to so many interview and investigative processes.

15. I note that the history over this period includes an Order being made by Federal Magistrate Jarrett (now Judge Jarrett) on 26 November 2010 dismissing the Father’s application filed on 22 September 2010 by which the Father sought to vary or replace the consent Orders that had been made on 11 September 2009.

16. In her March 2012 family report, Ms D refers to the fact of this family having a long history of entrenched and bitter conflict. However, at that stage, Ms D recorded that it seemed that both parents were highly desirous of moving forward and not returning to past issues and had reached partial agreement during her assessment. She did make comments as to the tenuous dimension of such agreement but nevertheless decided against outlining a detailed history of conflict in the interests of assisting the family to move forward.

17. The family report writer records both parents recounting, at their interviews on 21 March 2012, how dramatic an effect was had on them by the “stern talking-to” Judge Jarrett gave the parties about the impact their conflict was having on their son at a court hearing dealing with the Father’s mid-2011 filing of an application for an order that the child live with him.

18. As at the family report on 24 March 2012, the parents were said to have been working co-operatively and were agreeable to the child’s time with the Father increasing to full day periods.

19. On 18 April 2012, final Orders were made by consent of both parties.

20. Those final Orders provided for the child to live with the Mother; for the parents to have equal shared parental responsibility; and for the child to spend time and communicate with the Father not less than:

    a)Each alternate weekend – with the time to gradually increase – starting from 10.00am Saturday to 8.30am Sunday, commencing on 31 March 2012 and extending to 5.00pm Friday to 5.00pm Sunday by 15 June 2012; and

    b)One week of the school holidays.

21. The final consent Orders of 18 April 2012 contain many other agreed provisions reflecting the extent to which the parties were apparently able to reach consensus on parenting orders in the child’s best interests.

22. As already noted, the Mother filed an Initiating Application on 2 November 2012 seeking to replace the earlier Orders and her application was amended on 22 May 2013 to seek the orders which have already been referred to.

23. Thus it is that only within about seven months of the final consent Orders being made on 18 April 2012, did the Mother seek to vary and replace them via her Initiating Application filed on 2 November 2012.

24. On 7 November 2012, the Father filed his Response seeking to dismiss the Mother’s application, being the application before me.

25. It is important to note that throughout the period of conflict and litigation referred to, the litigation occurred in the Federal Magistrates Court (as the Federal Circuit Court then was) and was in the docket of then Federal Magistrate Jarrett. Notably the final consent Orders were made by Federal Magistrate Jarrett on 18 April 2012.

26. In those circumstances, it therefore seems to me to be significant that following the filing by the Mother of her current application and affidavit evidence in support, Federal Magistrate Jarrett (as his Honour then was) made an Order on 23 November 2012 transferring all outstanding applications from the then Federal Magistrates Court to this Court with a request that this matter be considered for inclusion in the Magellan List.

27. The Magellan List is the list of those cases before this Court involving serious allegations of physical abuse or sexual abuse of a child or children.

28. It seems to me to be a significant factor on this application that Federal Magistrate Jarrett, having had significant involvement over the history of the proceedings as referred to, viewed the Mother’s allegations in support of her current application as significant enough to warrant transfer of the proceedings from the then Federal Magistrates Court to this Court. Implicit in that, it seems to me, is that Federal Magistrate Jarrett did not view the Mother’s current allegations or at least those allegations made since the April 2012 final consent Orders as simply in the character of “more of the same” by reference to earlier allegations made by either parent.

29. The essence of the Mother’s case, in summary, would seem to be that the child, himself, has reported allegations to his treating general medical practitioner which are of concern. The child has allegedly reported to Dr H both episodes of physical violence the child has allegedly been subjected to by the Father and also at least one allegation of the child’s penis being bruised, which the child attributed to the Father.

30. Whilst the Father would have it on his material that the Mother’s reports of such episodes or incidences to the Department are similar to numerous allegations or notifications she has previously made, the Mother points out that reports to the Department have actually been made by reporters such as Dr H.

31. Mr Munt, solicitor, who appeared for the Mother on this application also sought to emphasise that proceedings in the Federal Magistrates Court before Judge Spelleken (now the Federal Circuit Court) involved the Father and the children of his previous relationship with Ms I. It is said that serious allegations are raised in those proceedings sufficient, it is said, to cause a family report writer to raise the prospect of the Father’s time and communication with E and F being severely restricted or curtailed.

32. I emphasise here that, on an interim hearing such as this, where parties and their respective witnesses are not cross-examined, disputed issues of fact cannot be resolved. Thus the Mother’s allegations cannot be adequately tested nor can the Father’s dispute of them or his positive case to the effect that the Mother continues to advance allegations which she actually knows have no substance, in disrupting parenting arrangements.

33. In these circumstances, it seems to me that I cannot be satisfied, on such an interim hearing, that there is nothing new, or no material change in circumstances in the allegations advanced by the Mother.

34. This is not to say that a trial judge embarking upon a trial, perhaps with a great deal more evidence from third parties and independent experts and the input of an Independent Children’s Lawyer may not be able to form conclusions on tested evidence short of completing an entire trial of parenting issues. That is, it may be that by the time of the trial of these proceedings, an application to summarily dismiss can be more readily entertained and dealt with because of the state of the evidence and the capacity to have relevant witnesses cross-examined.

35. In these circumstances, rather than dismissing the Father’s current application I will Order that it be adjourned to the trial judge. In that way there is no prejudice to the Father should he seek to renew his application at the trial stage of the proceedings.

36. The Father, consistent with the approach that the most recent allegations ought be viewed as “more of the same” as it were with respect to the history of this matter, opposed the appointment of an Independent Children’s Lawyer to independently represent the child’s interests in the proceedings.

37. In circumstances where the Mother is raising allegations of child abuse and there is evidently intractable conflict between the parents, I will Order that an Independent Children’s Lawyer be appointed pursuant to s 68L(2) of the Act to independently represent the child’s interests in these proceedings.

38. An Independent Children’s Lawyer has been appointed to represent the interests of the Father’s children of his previous relationship in the proceedings discussed earlier. Given there is necessarily an overlap between these two matters, it would be beneficial for Legal Aid Queensland to consider appointing the same Independent Children’s Lawyer in this matter.

39. I do not consider the Father’s opposition to the same Independent Children’s Lawyer being utilised, asserted to be on privacy grounds, is soundly based. Necessarily, relevant aspects of the Father’s parenting of any one of his children may be relevant to all of them in terms of parenting orders in the best interests of each child and there are sound practical reasons for the representation of all of the children to be via a single lawyer.

40. For these reasons I make the Orders set out at the commencement.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 9 September 2013.

Associate:

Date:  9 September 2013