Alford and Frost

[2014] FamCA 411

FAMILY COURT OF AUSTRALIA

ALFORD & FROST [2014] FamCA 411

FAMILY LAW – CHILDREN – Interim Orders – father sought orders suspending the mother’s time with the child – mother seeks time recommence under supervision of her sister – long history of litigation – mother’s partner convicted of several offences in which the parties’ child was the victim – mother’s partner intends to appeal conviction – child may be required to give evidence – father alleges mother unable to protect child from harm – best interests of the child – meaningful relationship with the mother to be balanced against risk to child’s psychological welfare – child not to spend time with the mother until further order.

Family Law Act 1975 (Cth)

APPLICANT: Mr Alford

RESPONDENT:	Ms Frost
INDEPENDENT CHILDREN’S LAWYER:	The Family Law Project

FILE NUMBER: ADC 144 of 2009

DATE DELIVERED: 4 June 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 4 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Du Barry

SOLICITOR FOR THE APPLICANT: Vicki Lehmann & Associates

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Anderson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: The Family Law Project

Orders

1. Pending further orders all orders currently in place for the mother to spend time with the child N born on … 2008 are suspended.

2. The Application in a Case filed by the father on 7 May 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Alford & Frost 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: ADC 144 of 2009

Mr Alford

Applicant

And

Ms Frost

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an Application in a Case brought by the father on 7 May 2014, in which he seeks that the orders which provide for the time the child spends with the mother be suspended.  The mother’s response to the Application in a Case basically seeks that the time commence again and be supervised by her sister, Ms M, with similar conditions to those which are in existence pursuant to the orders of Judge Kelly. 

2. I am grateful to the counsel for the Independent Children’s Lawyer for providing me with the detailed chronology of this matter.

3. There is significant material on the Court file including the recent affidavits of the father and the mother, the report of Dr A which was prepared over a year ago, February 2013, and the significant annexures to the affidavit filed on behalf of the Independent Children’s Lawyer on 3 June 2013.  This significant history needs to be taken into account including the orders which have been made from time to time in the Federal Circuit Court since the proceedings commenced some time ago.

4. The child of the parties, N, (“the child”), was born in 2008 and is only just six years old.  As can be seen from the material on the Court file, there were in place consent orders in 2009 which provided for the child to live with the father and spend time with the mother. 

5. The mother commenced a relationship with Mr B in late 2011.  Since then, there have been further allegations.  The matter has been before Kelly FM (as she then was) over a period of some time.  Orders were made in July 2012 and October 2012 which provided that the mother be restrained from leaving the child unsupervised with her partner, Mr B.

6. The orders were then continued until the orders were changed by consent in March 2013 which provided for the mother’s time to be supervised by nominated persons. 

7. Since that time there has been forensic psychological assessments, CPS reports and a significant judgment of the District Court which is annexed to the affidavit of the father filed on 7 May 2014.  The judgment of the District Court indicated that the mother’s then partner and now fiancé has been convicted of multiple counts of serious offences.  The victim was the child.  It would appear from the information in that judgment that the offences relate to periods in November 2012 through to January 2013 and February 2013. 

8. The Court is also now aware from the affidavit of both the father and the mother in Court today that Mr B proposes to or has appealed the judgment of the District Court in relation to those counts.  There is, therefore, a risk of the child being required to give evidence in relation to the offences. 

9. I am being asked by the father to suspend all time with the mother on the basis that it is alleged that the mother cannot be trusted to ensure that the child is protected from harm.  It would appear from the affidavit that the father is saying that he no longer trusts Ms M, the mother’s sister, to be an appropriate supervisor.

10. These are interim matters.  I am not able to make a definite finding concerning many of the disputed matters.  What is clear, however, is that there has been considerable ongoing dispute between the parties since the issues in relation to the alleged assaults of the child occurred after the original consent orders were made in 2009.

11. Now I have before me the detailed and thorough judgment of the District Court in relation to the serious counts of offences against the young age of the child.

12. In relation to the matters which the Court must determine, the paramount consideration is the best interests of the child.  Primary considerations are the benefit of the child having a meaningful relationship with both of the parents and the need to protect the child from physical or psychological harm.  There is a significant need to protect the child from what would clearly be a risk of psychological harm in relation to the possibility of him being influenced whilst the appeal from the criminal convictions is outstanding. 

13. It appears from her affidavit that the mother has not accepted the guilt of her fiancé.  She says in her affidavit at paragraph 19 that the father’s behaviour is, “disgusting, he is acting very vindictive and using [the child] as a pawn, in his nasty fight for custody”.  Whilst there is an admission that there has been a conviction of Mr B, there is clearly not an acceptance that the conviction was correct.  She maintains her relationship with him.

14. In the context of the possibility of ongoing criminal proceedings and the significance of the child as a prosecution witness in the case in which the mother was a witness for the defence, I consider that there is, on the basis of material before me, a significant risk in relation to the child’s psychological welfare. 

15. In relation to the additional considerations, the views expressed by the child as alleged by the father would not normally carry weight, particularly considering the age of the child.  However I take into account the remarks of the Family Consultant in the report which indicated that when the child was seen with the mother and Mr B, considerable reluctance was shown.  However, that is not a determining factor. 

16. Another significant factor is the benefit to the child of having a meaningful relationship with the mother.  That would normally be strongly supported and bring about a situation where there would be at least supervised time, even if it is supervised at a Child Contact Centre.  However I balance that factor off against the significant allegation of family violence offences whilst the mother was under an obligation not to leave the child unsupervised in the company of Mr B. 

17. That that brings into doubt the capacity of the mother to provide for the needs of the child.

18. Considering all of those factors, on an interim basis, and pending the resolution of the criminal proceedings against Mr B the orders will not provide for the child to spend any time with the mother.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 4 June 2014.

Associate: 

Date:  19 June 2014