Aldrich and Bingley

[2013] FamCA 135

FAMILY COURT OF AUSTRALIA

ALDRICH & BINGLEY [2013] FamCA 135

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – best interests – orders for the children to spend supervised time with the father pending trial.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Aldrich

RESPONDENT: Ms Bingley

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of SA

FILE NUMBER: MLC 3119 of 2010

DATE DELIVERED: 26 February 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 26 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Noble

SOLICITOR FOR THE APPLICANT: Duncan Basheer Hannon

COUNSEL FOR THE RESPONDENT: Ms Dibden

SOLICITOR FOR THE RESPONDENT: Catherine Hicks & Co

COUNSEL FOR THE INDEPENDENT CHILDFREN’S LAWYER Mr Stephen

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

Orders

1. The final application proceedings be referred to the list of matters awaiting trial allocation and are adjourned for trial directions before the Registrar on a date to be advised by the Court UPON NOTING the parties currently estimate the length of trial to be seven [7] days.

2. In view of the father’s undertaking it is appropriate that the father take steps immediately to obtain his Yemeni passport from his brother and within twenty-eight [28] days provide the same to the mother’s solicitors for inspection and copying.

3. The parties attend a mediation conference in relation to all issues to be arranged by the Legal Services Commission.

4. The father continue to have supervised time with the children at the B Children’s Contact Service (“the CCS”) at times to be determined by the CCS for as long as such supervised time is available.

AND IT IS FURTHER DIRECTED THAT

1. The father to make arrangements as soon as possible to attend a parenting course in Australia and to obtain a certificate to provide to the mother’s solicitors and the Independent Children’s Lawyer on completion of such parenting course.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aldrich & Bingley 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 ADELAIDE

FILE NUMBER: MLC 3119 of 2010

Mr Aldrich

Applicant

And

Ms Bingley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The main issue that I have to determine this morning is what order by way of interim order is in the best interests of the three children.  The eldest child C was born in September 2001, S was born in December 2002 and D in July 2005. 

2. The significant history of the matter is contained in the affidavits and documents now on file including the Family Report from the Family Consultant which is dated 21 February 2013. 

3. There are significant matters which are in dispute about the history which involves matters which would enable the Court to determine those factors which relate to what is in the best interests of the children.

4. In particular the Court notes the detailed background to the dispute which is set out in the Family Consultant’s report containing the history of the disputed arrangements which took place when the parties were residing in Saudi Arabia with the children, the subsequent orders which were made by Saudi Courts and action which was taken for the deportation of the mother (without the children of this relationship) and thus the separation of the children from their mother for a considerable period of time.

5. The summary also includes sentencing information of the mother’s current partner in Saudi Arabia for matters which related to the relationship between her current partner and the mother at a time when there was dispute about the status of the marriage between the mother and the father. 

6. The background also sets out the history of the arrangements which have been in place for the children which can only be described as disruptive. 

7. The benefit to the Court is the information provided by the Family Consultant when interviewing the mother, the father and the children.

8. It is clear from the Family Report and the Children’s Contact Service (“the CCS”) report that the children have exhibited a close and loving relationship with the father at the Family Consultant’s interviews and at the time they spend under supervised time with the father at the CCS. 

9. It is also clear from the report that the mother has significant concerns about her welfare, the welfare of her current partner and the children specifically related to any time the father should spend unsupervised with the children.

10. This morning I have had submissions put to me by the Independent Children’s Lawyer and counsel for the mother and father.  The father wishes to spend time immediately with the children unsupervised but would accept some time of introductory further supervised time.  The mother is opposed to any unsupervised time. 

11. The report from the Family Consultant makes recommendations which provide for the children to continue to live with the mother, their half-siblings and stepfather and to spend time with the father unsupervised each alternate weekend thereafter leading to further time extended on a Saturday to Sunday.

12. It is proposed that all handovers take place at the CCS.  The recommendations have to be seen, however, in light of the evaluation which commences on page 18, paragraphs 50 to 55 of the report.  These matters were highlighted by the Independent Children’s Lawyer as a basis for concern to the Court making orders at this time for unsupervised time with the father.  I take into account those submissions and accept them as being of significance in relation to the determination of what is in the best interests of these children.

13. Paragraph 50 clearly highlights the difficulties: 

    This is a highly complex matter imbued with sensitive and conflicted cultural and religious issues that have clearly left an indelible mark upon both [the mother] and her husband whilst seeming to have had little impact on either the father or the three children.

14. That is a summary of that quotation. 

15. The difficulty in this matter is to weigh up the two primary considerations, namely the benefit to the children of having a meaningful relationship with both of the parents and other persons important to them and the need to protect the children from harm, being psychological, emotional or physical abuse.  Weighed together with that is the capacity of the parents to provide appropriate care for the children.  Bearing in mind the history of this matter, it is clear that there is a risk to the care of the children if the mother were to be forced by this Court to give unsupervised time to the father at this time.

16. This is a matter where the Court cannot determine on the papers which of the highly opposing facts set out by each of the parties should be accepted as the basis upon which the consideration should be made. 

17. The mother makes allegations in relation to her treatment and that of her current partner’s treatment which is the basis upon which she has serious concern for her welfare and indirectly the welfare of the children.  The mother accepts that the father and children have had in the past a loving relationship but expresses considerable fear about the emotional and psychological risk to the children if there is to be unsupervised time with the father.

18. In those circumstances therefore and taking into account the other matters which are required to be considered under section 60CC, in the difficult circumstances where there is high dispute about the basic facts, I am not proposing to make an order which provides for unsupervised time to commence at this stage. 

19. I therefore order that the father continue to have supervised time with the children at the CCS at times to be determined by the CCS for as long as such supervised time is available. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 26 February 2013.

Associate: 

Date:  6 March 2013