WATSON & PETERSON

[2012] FamCA 1148

FAMILY COURT OF AUSTRALIA

WATSON & PETERSON [2012] FamCA 1148

FAMILY LAW – Case relisted – preparation of follow up family report

APPLICANT: Ms Watson

RESPONDENT: Mr Peterson

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr M Weston

FILE NUMBER: DGC 2575 of 2008

DATE DELIVERED: 23 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 23 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms O’Connell

SOLICITOR FOR THE APPLICANT: Fiona R Mcgregor

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr J. Grigg

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Perry Weston

Orders

IT IS ORDERED THAT:

1.The final hearing set down for today be vacated and in lieu thereof the matter be listed for final hearing before me on 20 August 2012 at 10.00 am subject to part-heard cases only and estimated to take 5 days.

2.The matter be listed for mention before me by telephone on Tuesday 7 August 2012 at 9.00 am to check on the readiness of the matter for trial and whether any party requires further direction for trial.

3.There be a follow up family report be prepared pursuant to section 62G(2) of the Family Law Act 1975. The parties and child B (“the child”) born … July 2000 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties comply with all reasonable directions as to attendance upon Mr C, Family Consultant, as and when required by the said Family Consultant AND IT IS NOTED that the first assessment interviews are likely to be conducted on 11 July 2012 and the family report to be released by not later than 31 July 2012 and published to the parties.

4.The family report deal with the following matters:-

a)      any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that may affect the weight that the court should place on those views;

b)      an observation of each of the parties with the child (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the child;

c)      whether it is feasible for the father to spend time or communicate with the child and, if so, how that may be commenced;

d) the matters set out in s60CC of the Family Law Act;

e)      an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;

f)      recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the child’s best interest.

5.By not later than 4.00 pm on 31 May 2012 the mother file and serve any further evidence upon which she relies in relation to these parenting proceedings, including the basis upon which she contends that there ought be no orders for time to be spent between the child and the father.

6.By not later than 4.00 pm on 14 June 2012 the father file and serve any further evidence upon which he relies which including, but not limited to, the response to the mother’s affidavit sworn 20 December 2011 and the affidavit which she will file in accordance with this Order.

7.The independent children’s lawyer cause a subpoena to issue to produce documents addressed to the proper officer of the school attended by the child, being Suburb D School, for his personnel file and any other documents which may have a bearing on the child’s welfare.

8.Subject to any further or other order of the Court the independent children’s lawyer be responsible for securing the attendance at Court, if necessary, of the following experts:-

a)     Ms E, family consultant (who has prepared three family reports);

b)     Ms F, psychologist, (who prepared the report in June 2009);

c)     the author of the Department of Human Services report dated 11 May 2011, namely Ms G, child protection practitioner;

d)     the author of the report from Victorian Paediatric Medical Service dated 28 January 2011, being Dr H;

9.By not later than 12.00 noon on 14 June 2011, each party inform the independent children’s lawyer and the other party to the proceedings in writing if any of the experts referred to in the previous paragraph of this Order are required for cross-examination.

10.I reserve for determination at the trial the issue of responsibility for the reasonable cost of requiring experts to attend Court with the effect that, if any party requires a witness for cross-examination, they may well be required to pay the reasonable costs and expenses of that witness’ attendance.

11.Upon the release of the documents produced by the said school attended by the child, the independent children’s lawyer do all acts and things necessary to obscure from the documents so produced the current residential address of the mother.

12.Until further order, the address for service of father be noted in the records of the Court as I Street, Suburb J and his telephone contact numbers are ...

13.IT IS DIRECTED that my Associate place a special notice on the outside cover of the last volume of court documents of the father’s new contact details so that they can not be missed by any administrative assistant assisting the family consultant.

AND IT IS NOTED that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Watson & Peterson 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 MELBOURNE

FILE NUMBER: DGC 2575 of 2008

Ms Watson

Applicant

And

Mr Peterson

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me for the final hearing of competing applications in relation to the child, who’s 12 years old.  The proceedings are in the Magellan list of cases, such as it is, largely arising out of an incident in February 2011 in which the father admits that he struck the child, causing bruising. 

2. The child has not seen the father on a spend time arrangement since February 2011.  The child saw the father in an assessment interview with Mr C in or about August 2011 for the purpose of a section 62G report.  The parties’ evidence, as committed to affidavit, is fairly brief.  There is an extensive history of family reports in this Court dating from 2003 and expert intervention and the intervention of the Department of Human Services. 

3. There is a very troubling degree of conflict between the parties and it would be an understatement to describe it as a high conflict case. 

4. Today, after discussion with the parties, it was conceded by all that the matter could not proceed without some further input by a family consultant.  That is because since Mr C last saw the family, everyone has changed their stance.  It is said through the Independent Children’s Lawyer and by the mother that the child is now oppositional to seeing his father and does not want to do so.  The mother has changed her position.  In particular, she says that her previous position was based on the fact that the child did seek a relationship with the father, but now that he does not.  She does not independently seek that the child have a relationship with the father. 

5. There is no affidavit evidence directed to the child’s change of views or change of heart. 

6. There is no affidavit evidence directed to the mother’s change of position.

7. There are very many reasons why this young 12-year-old boy may express views which are different to those that he expressed to the family consultant in August 2011, notwithstanding that he hasn’t seen his father since that time.  It is imperative, in my view, that the child’s views be assessed.  The father has now commenced a course of counselling, but I’m not clear as to precisely what sort of course that is.  The course was found for him by Ms K, who convened a roundtable dispute management event at Victoria Legal Aid on 20 April 2011. 

8. I note here, however, that it was a RDM conference convened by telephone rather than having the parties attend in person.  The father attended a counselling course on 2, 9, 16 May and has a fourth session today. 

9. The father seeks by way of final orders a phasing in of time between himself and the child for the first four, time to be spent once a month for approximately four hours.  Thereafter, at three-weekly intervals for approximately five hours and then, after six months, a review by the Court of the input of the Independent Children’s Lawyer.  The mother, on the other hand, seeks a cessation of any time or communication between the father and the child. 

10. The Independent Children’s Lawyer wants to await the outcome of the further assessment by Mr C before expressing even a firm preliminary view. 

11. Mr C can see the parties and child again on 11 July, and his report should be released by 31 July and the matter can return to me for a final hearing on 20 August 2012. 

12. One final point relates to documents to be produced by the child’s school on subpoena. 

13. Ms O’Connell, for the mother, rises and says that her client seeks that her address be obscured or not disclosed to the father by virtue of him looking at the documents produced on subpoena. 

14. The child attends Suburb D School.  The father lives in Suburb J.  Notwithstanding that it would have probably been reasonably easy for the father to locate the child’s residence if he was minded to do so, I’m informed that the mother’s anxieties are very high in this regard, in particular the issue of disclosure of her address “looms large for the mother”.  She “harbours great fears of the father” and “there is a history of domestic violence”. 

15. I merely record these matters here because they are likely to be the topic of some cross-examination and evidence at the final hearing.  The father, for his part, doesn’t mind whether he knows where the mother lives or not; what he wants to do is to resume some time with the child, but he is concerned that accommodating the mother’s concern about him knowing the address might be misinterpreted as the mother having some bona fide reason to keep her address secret from him.  It won’t be.  He is content not to know the address for the time being.  The address will be obscured.

16. I will take the matter for mention on 7 August by which time the parties should have read and considered Mr C’s report in all respects in anticipation of the final hearing on 20 August 2012. 

17. It would also be appropriate for any party who is in receipt of legal assistance from Victoria Legal Aid to know, by 7 August, what his/her position is precisely in relation to funding the final hearing.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 23 May 2012.

Associate: 

Date:  25 July 2012