Aldrich and Bingley (No. 2)

[2013] FamCA 824

FAMILY COURT OF AUSTRALIA

ALDRICH & BINGLEY (NO. 2) [2013] FamCA 824

FAMILY LAW – CHILDREN – Interim Orders – with whom a child should spend time – where the father seeks extended unsupervised time with the children – where the mother opposes unsupervised time between the children and the father – best interests – consideration of Family Report – orders made for the children to spend time with the father unsupervised pending the final determination of the matter.

Family Law Act 1975 (Cth)

APPLICANT: Mr Aldrich

RESPONDENT: Ms Bingley

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of South Australia

FILE NUMBER: MLC 3119 of 2010

DATE DELIVERED: 11 October 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Noble

SOLICITOR FOR THE APPLICANT: Duncan Basheer Hannon

COUNSEL FOR THE RESPONDENT: Mr Boehm

SOLICITOR FOR THE RESPONDENT:	Catherine Hicks & Co
COUNSEL FOR THE INDEPENDENT CHLDREN’S LAWYER	Mr Stephen
SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER	Legal Services Commission Of South Australia

Orders

BY CONSENT BY WAY OF FINAL ORDER IT IS ORDERED THAT

1. The three children C, S and D live with the mother.

IT IS FURTHER ORDERED BY WAY OF INTERIM ORDERS THAT

1. The father spend time with the children each Saturday from 10.00 am to 4.00 pm commencing on Saturday 19 October 2013 and each alternate Saturday thereafter with handovers to take place at B Children’s Contact Service (“the CCS”) on the basis that the parties are not to come into contact with each other with the mother to deliver the children to the CCS by 9.50 am and the father not to approach the CCS before 10.00 am.

1. Forthwith the parties take all steps to make the appropriate arrangements for the CCS to facilitate the handover of the children.

1. If by 19 October 2013 the CCS is not available then handovers will take place inside the Suburb B Police Station at … until the CCS is available.

1. The father is restrained and an injunction is granted restraining him from questioning the children or permitting any other person to do so in the presence or hearing of the children about these proceedings, where the children live, or information concerning their whereabouts of their school, or the identification of their school.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aldrich & Bingley (No. 2) 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. This is the hearing on an interim basis of the Application in a Case brought by the father and filed on 6 August 2013.  The Application in a Case needs to be seen in the background to the history of the matter, which commenced in April 2010.  Significant orders have been made and steps have been taken since that time, including orders made when the matter was in the Melbourne Registry.  A Family Report was prepared earlier this year.  Since then, orders have been made for the father to have supervised time with the children.

2. The Application in a Case currently before the Court is an application in which the father seeks extended unsupervised time with the children.  The children in these proceedings are C, who is now 12, S, who is now 10, and D, who is now eight.  The children have themselves been involved in somewhat tumultuous experiences, including the time which they spent in Saudi Arabia, their removal from Saudi Arabia and orders returning them to the mother’s care.  The history of the matter is significant, in particular, (as set out in the commencement of the Family Report) the background to the dispute and the orders then being sought.

3. A significant development since then is, that following upon the developments since the last hearing before me, this morning I have made an order by consent of the father and the Independent Children’s Lawyer that by way of final order, the children live with the mother.  That leaves the issue to be determined on a final basis only the time that the father should have with the children.  As I have indicated, this matter is number 15 in the list of matters currently awaiting an allocation of a trial date. 

4. That, however, is not the most important feature.  What is most important is that orders have to be made on an interim basis which take into account the best interests of the children as the paramount consideration. 

5. As I have previously indicated, the orders which the Court makes require the Court to consider the benefit to the children of having a meaningful relationship with each of their parents, but the significant and dominant matter to be taken into account is the need to protect the children from any form of harm, including psychological and emotional harm.

6. Those matters are raised as significant issues by the mother in her affidavit material and submissions on her behalf, particularly in relation to the emotional and psychological risk to the children that the mother maintains would be in place if the father were to have unsupervised time with the children, due to what she alleges to be the past history of violence, controlling behaviour and what she asserts are inappropriate religious views of the father.  These matters are strongly disputed by the father. The Court is not in a position to make any findings in relation to those disputed matters. 

7. The Court has previously made injunctions restraining the father from attending upon the home in which the mother or the children reside, the schools to which the children attend or any other place where the children frequently attend for social occasions.  That is some protection for the mother and her concerns about the father’s attitude but would not overcome the risks that she asserts will exist if the father was to have unsupervised time with the children.  I am being asked to ensure that the children are protected if I grant the unsupervised time, that I also make an injunction restraining the father from questioning the children about these proceedings, where the children live or where the children go to school.

8. In unsupervised time, it would be difficult to have any such injunction monitored.  I have pointed out that I consider it would be difficult to provide the protection that the mother seeks, bearing in mind the ages of the children and the capacity of the children to inadvertently disclose material which would cause concern to the mother.  The provisions of the Family Law Act (1975) (Cth) however, emphasise the need to have time and establish and maintain a meaningful relationship with both parents where that is in the children’s best interests. 

9. I take into account the recommendations of the Family Report and the observations of the supervised time which are before the Court, which indicate that the children were pleased to be spending time with the father.  The Family Report indicated the children’s clear preference to remain in Australia and in the care of their mother, but they were seeking alternate weekends and school holidays with the father if he remained living in Australia.  It appears now that the father has also withdrawn his application for the children to live with him either here or in Saudi Arabia.  Now his present wife is also residing here in Australia with him.

10. The risks to the children in relation to the attitude that the father has to his Islamic religion are matters which I cannot determine at this stage.  I am being asked by the father to make orders which would provide for a short period of daytime contact and then for regular alternate weekend time.  That introduction of some unsupervised times on Saturdays is supported by the Independent Children’s Lawyer. 

11. There is a strong need to take into account the high ongoing dispute between the parents and the concerns that the mother has about the father’s capacity to behave in a way which maintains the best interests of the children.

12. Taking into account, however, the children’s wishes, their current ages and the success of the supervised time, I consider it to be in the best interests of the children that there be an introduction of limited unsupervised time, pending the determination of these final proceedings. The mother’s concerns will be monitored in due course by an updated Family Report when the matter is listed for trial. The protection of the orders which prevent the father from removing the children from Australia or from approaching their home or school or other places which they frequent will continue.

13. The matter has already been referred to a Registrar for listing of the matter for final hearing.  I would expect the Registrar then to make directions for an updated Family Report to be available for the trial of the matter.  I do not propose to make any orders at this stage which provide for the children to spend overnight time with the father.  I consider it to be in the best interests that there be a gradual arrangement, which would allow them to settle into spending regular time with their father and to allow the mother to adjust to the arrangements, taking into account what appear to be her concerns.

14. I am not listing it for any further directions or interim hearing.  I am noting that it is still referred to the Registrar to have the matter listed so that all the matters that are in dispute can be determined before there is any further alteration in the time spent between the father and the children.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 11 October 2013.

Associate: 

Date:  28 October 2013