Zarins and Mylne

[2011] FamCA 320

FAMILY COURT OF AUSTRALIA

ZARINS & MYLNE [2011] FamCA 320

FAMILY LAW - CHILDREN – interim orders – where the mother seeks orders that the child live with her and spend supervised time with the father – where the matter has a complex history – where the proceedings were previously resolved by consent with orders that the child eventually be cared for in a shared care arrangement – where the mother alleges that the father has physically abused the child – where the mother seeks final orders that the father have alternate weekend time with the child – where it was held that the child would be adequately protected by the imposition of various protective injunctions – orders that the father spend regular time with the child.

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No 2) (2010) 240 FLR 367
MRR & GR (2010) 263 ALR 368

APPLICANT: Ms Zarins

RESPONDENT: Mr Mylne

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 4802 of 2008

DATE DELIVERED: 3 May 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 3 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lee

SOLICITOR FOR THE APPLICANT: Polly Dixon & co

COUNSEL FOR THE RESPONDENT: Ms Dickson

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. Both parties are restrained and an injunction is granted restraining each of them from physically disciplining the child or from permitting any other person to do so AND UPON NOTING that there is no specific allegation that the mother has physically disciplined the child or abused the child recently and no admission by the father that he has abused or physically disciplined the child.

2. Paragraph 3(b) of the Order of 14 May 2010 is amended to provide the child live with the father:

   “For a period of three [3] months commencing on Friday 6 May 2011:

   (a)       from 6.30 pm Friday until 6.30 pm Monday each alternate week;

   (b)       from 6.30 pm Thursday until 6.30 pm Friday in each intervening week.”

3. A family assessment be prepared by Dr C (if possible) or such other Family Consultant as the parties may agree and in default of agreement as ordered by the Court such report to be prepared and released dealing with the issues relating to the welfare of the child B with the Independent Children’s Lawyer to provide the writer of the report with the background material that is on the Court file after consultation with the mother and father’s solicitors such report to be at the joint cost of the parties.

4. The mother has leave to file the Initiating Application nunc pro tunc.

5. Leave is given to the father to file his Response to the Initiating Application PROVIDED THAT the same is filed and served within fourteen [14] days.

6. Pending further order the mother is restrained and an injunction is granted restraining her from taking the child for treatment by Mr L or any other psychologist without the written consent of the father and the Independent Children’s Lawyer.

7. The matter is adjourned to the Registrar for a date to be fixed after the Registrar consults with the Independent Children’s Lawyer as to the timing of the Family Consultant’s report matter to be listed before the Registrar for a Directions Hearing to prepare it for final hearing.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4802 of 2008

Ms Zarins

Applicant

And

Mr Mylne 

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application which has been transferred from the Federal Magistrates Court.  It was not entirely clear on the face of the file what had been transferred or listed before me this morning and why the matter was before the Court. 

2. The specific orders made by the Federal Magistrate transferring the matter also directed the mother to file and serve an Initiating Application within seven days.  That was not done.  The Initiating Application now on file was filed on 29 April 2011.  The mother seeks final orders providing that the parties have equal shared parental responsibility for long-term issues, affecting the child, B.  There is an order already in place made by consent on 14 May 2010 in relation to the child.

3. These proceedings concern the child B, who was born in April 2007 and is therefore only just turned four, a short time ago. 

4. The final orders sought by the mother include an order that the child live with her and that the child spend time with the father from 5.00 pm on Friday to 5.00 pm on Sunday, each alternate weekend and upon the child commencing school extending to from the conclusion of school on Friday until the commencement of school on Monday, each alternate weekend, for half of each school holidays and for other special occasions.

5. The final orders sought include that the child continue counselling with Mr L as required, that both mother and father share that cost and specific injunctions including restraining the father from removing the child from the metropolitan area of Adelaide and from the Commonwealth of Australia, from physically disciplining the child and other ancillary type injunctions.

6. The interim orders sought by the mother in that application are that until further order the child live with her and spend time with the father on a supervised basis, at Children’s Contact Service 1 once a fortnight, on a Saturday or Sunday, and seeking orders that the father undertake anger management, parenting and alcohol courses and provide written evidence in relation to the same. 

7. The matter comes on before me today to determine what interim orders are to be made in relation to the child B. 

8. This has to be seen in the context that the Federal Magistrate has suspended paragraph 3 of the Consent Order which was made on 14 May 2010, which provided for the parties to have equal shared responsibility for B and for the child to live with the father, initially for a period of six months, from 6.30 pm Friday and 6.30 pm Sunday, each alternate week and from 6.30 pm until 8.30 pm each Wednesday.  After that first period of six months it was increased to be from 6.30 pm Friday until 6.30 pm Monday, each alternate week and from 6.30 pm Thursday until 6.30 pm Friday, in the each intervening week.

9. Thereafter, the orders were made extending the time so that it would increase to provide that the child live with the father from 6.30 pm Friday in one week until 6.30 pm Friday in the next week, with different arrangements in relation to school terms when the child would live with the mother from 6.30 pm until 8.30 pm each Wednesday during the weeks that the child is living with the father. 

10. This could easily be described as a shared care arrangement.  There were specific orders made in relation to special occasions.  There were also specific injunctions made in relation to the father, without any admission, being restrained from “consuming alcohol to excess” for 12 hours prior to and the duration of all periods of time with the child and specific directions for the father to attend an anger management course within two years and for the mother to attend a child focussed course within two years.

11. The parties were also directed to seek assistance from Counselling Organisation 1.  I understand that the Counselling Organisation 1 course has been undertaken, that the mother has made arrangements to enrol in the child focussed programme, but neither paragraphs 21 nor 22 of the order have yet been completed. 

12. This difficult matter needs to be seen in the complex history of the proceedings between the parties in the Federal Magistrates Court which led to the Consent Orders being made when both parties were represented by counsel on 14 May 2010.  That also needs to be seen in the context of the age of the child.  B was then only aged three. 

13. Subsequently, however, there have been allegations both in relation to incidents in November 2010 and, more recently, in February 2011, raised by the mother that the father has physically abused the child.  The most significant of those are set out in the affidavit material which has been filed on behalf of the mother, including the affidavit of the solicitor, Ms Skordos filed on 1 March 2011, to which is annexed the Families SA reports and police reports.

14. As has been pointed out by counsel for the mother, the child made allegations about the father hitting her in the presence of police officers at the handover which was about due to take place in January 2011.  The allegations that the mother has made in relation to statements the child made to her and behaviour of the child in November 2010 are also annexed to the affidavit.

15. There is also the police report. 

16. One of the reports from Families SA refers to (under reassessment rationale) to a “department investigative response” being required.  See the paragraph which says: 

    “The mother has been advised to take the matter back to Family Court and the child has not attended access with the father since the concerns were reported.”

    Notwithstanding that that section concludes with:

    “… therefore a department investigative response is required”.

17. Counsel were unable to indicate that there has been any further investigative action or report prepared by the department.  It appears from the material now before the Court that neither the Department nor the police are taking any further action in this matter.

18. The Family Court of Australia is a Court.  It does not have the capacity to direct its own social workers to make investigations nor do we have our own police officers to carry out investigations.  Any investigation is, therefore, totally dependent upon the facilities available through Families SA and the police department. 

19. The police reports includes “a run date report” of 16 February 2011 with the police ancillary report referring to the mother saying in September 2009 (which is before the Consent Order of May 2010) that: 

    “The mother is angry that the Family Court has given [the father] access to the child and that it appears she will use all means possible to have that ruling overturned.”

20. That is contradicted by the Consent Order which was made on 14 May 2010 which provided for the child to live with the father for significant periods of time. 

21. Counsel for the father has also raised significant issues concerning the veracity of the mother and the weight to be given to the evidence provided by the mother. 

22. However, the mother’s counsel correctly points out that the truth of the allegations made by the mother was not specifically tested and no specific findings were made.  However, the weight to be given to the allegations made by the mother needs to be seen in the context of the Consent Order to which she agreed on 14 May 2010. 

23. The complex provisions of the Family Law Act1975 (Cth), in particular Part VII, and the decisions of Goode & Goode (2006) FLC 93-286, MRR v GR (2010) 263 ALR 368 of the High Court of Australia and the more recent decisions of the Full Court in the matters of Marvel& Marvel (No 2) (2010) 240 FLR 367 require the Court to give consideration to section 65DAA.

24. This is a case where there is an order in place that the parties have equal shared responsibility for B.  Specific orders have already been made in May 2010, by consent, for the father to have substantial and significant time, gradually becoming almost equal time with the child living with each of the parties.

25. The Court has as a primary responsibility to consider the need to protect the child from harm and the need to consider maintaining meaningful relationship with each of the child’s parents. 

26. The ancillary provisions of section 60CC are also relevant but the major ones to be considered in this context are the provisions requiring a consideration to be given to meaningful relationships and protecting the child from harm.  This needs to be seen also in the context that the mother has sought final orders which provide for the father to have alternate weekend time with the child.  Therefore, the allegations and concerns of the mother need to be seen in that context.

27. Weighing all of those factors and the submissions of the parties which I have heard, I consider it is possible to protect the child B on the basis that the Court will make specific injunctions restraining both the parties from physically disciplining the child or from permitting any other person to do so.  I propose by way of interim order to, therefore, order that both parties are restrained and injunctions granted restraining them from physically disciplining the child or from permitting any other person to do so. 

28. I do that on the basis that I note that there is no specific allegation that the mother has physically disciplined the child or abused the child recently, and on the context also that the father is also denying any basis for that order.  However, in view of the statements the child has made, it is appropriate for that order to be specifically made.  

29. There is already in place an order in relation to the consumption of alcohol by the father and an order already in place preventing the father from visiting the mother’s house. 

30. The specific orders of 14 May 2010 have not been carried out recently I therefore propose to ensure that the arrangements for the child to live with the father, as set out in subparagraph (b) of paragraph 3, continue for a period which would cover the period of the suspension rather than re-instate it as if there had been no interruption.  My understanding is that that time would have expired about now.  Therefore, that period should be for a further three months from today, rather than concluding on 14 May 2011 I do that on the basis of an interim order.  The suspension of Federal Magistrate Simpson is lifted and the orders of 14 May 2010 are to be re-instated, save and except that paragraph 3 is amended to provide for that time to run for a period of three months from today.

31. The other orders are left in place. 

32. As far as the preparation of a report is concerned, it would appear that it would be appropriate to move this matter forward so that the issues can be litigated, if necessary, as soon as possible.  The Independent Children’s Lawyer’s Counsel proposed that Dr C prepare a further family assessment.

33. The treatment of a child by a psychologist should be a matter which is normally decided by both parents after appropriate consultation.  The existing order provides for both parties to keep the other informed of medical requirements.  In view of the issues that are yet to determined, it would appear to be in the best interests of the child that all information be exchanged by the parents and to the Independent Children’s Lawyer so a proper determination can be made as to the basis for any treatment and the appropriate person to carry out that treatment. 

34. I do that on the basis that if the behaviour of the child is such that she needs psychological treatment then both parents and the Independent Children’s Lawyer will, no doubt, strive to reach an agreement to make sure that that form of treatment can be continued by someone who is fully aware of all of the background to the child’s living arrangements. 

35. It is of some concern that during most of the child’s life her parents have been engaged in litigation.

36. Once the Family Consultant’s report has been obtained, the matter should be listed before a Registrar to prepare it for final hearing, if the matter has not been resolved. 

37. I will adjourn the matter to a Registrar for a date to be fixed, after the registrar consults the Independent Children’s Lawyer as to the timing of the report.  That listing before the Registrar is to be a directions hearing to prepare it for final trial.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 3 May 2011.

Associate: 

Date:  9 May 2011