ANDERSON & ANDERSON

[2011] FamCA 219

FAMILY COURT OF AUSTRALIA

ANDERSON & ANDERSON [2011] FamCA 219

FAMILY LAW - CHILDREN – interim orders – with whom a child spends time – where the mother alleges that the father consumes alcohol in the presence of the child – where the matter has a long history – best interests – orders that the father’s time with the child be supervised

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Mr J Anderson

RESPONDENT: Ms S Anderson

FILE NUMBER: ADC 1707 of 2010

DATE DELIVERED: 25 March 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 25 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Noble

SOLICITOR FOR THE APPLICANT: Priya Subramaniam

COUNSEL FOR THE RESPONDENT: Mr Bowler

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse

Orders

1. That further consideration of the proceedings be adjourned to 9.15 am on Friday 13 May 2011 before the Duty Judge.

2. That pursuant to Section 68L of the Family Law Act 1975 as amended the child E (“the child”) born … September 2004 be independently represented and that such representation be arranged by the Legal Services Commission of South Australia and that to expedite the appointment of the Independent Children’s Lawyer each party do forthwith cause to be furnished to the said Commission a copy of all documents filed herein by that party.

3. That subsequent to the appointment of the Independent Children’s Lawyer the Independent Children’s Lawyer arrange for the father to undergo liver function testing in order to establish whether or not he has any problems with alcohol or the consumption of same.

AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT:-

1. That all current parenting orders be discharged.

2. That the parties have equal shared parental responsibility for the child.

3. That the child live with the mother.

4. That the child spend time with the father:-

   (a)    from the conclusion of school on Friday to the commencement of school on Monday as commenced on 12 November 2010;

   (b)    from 5.00 pm on Friday 15 April 2011 until 5.00 pm on Easter Saturday 23 April 2011

   UPON CONDITION that all such time spent by the father with the child is supervised by one of the paternal grandfather Mr P Anderson, the paternal grandmother Ms E Anderson or the father’s sister Ms M Anderson.

8,That all handovers not conducted at the child’s school occur inside the McDonalds restaurant at C in the State of South Australia.

1. That the father be entitled to communicate with the child by telephone during school terms on the Tuesday and Thursday of each week for a period of time between 6.30 pm and 7.30 pm and with the father to initiate the telephone call to the mother’s mobile telephone number … .

2. That the mother ensure that her mobile telephone is both charged and switched on to facilitate the father’s telephone communication with the child pursuant to paragraph 9 hereof.

3. That the parties ensure that the child continue her education at the W Primary School.

4. That the parties do not change the child’s principal place of residence from the metropolitan area of Adelaide.

5. That the father is restrained and an injunction is granted restraining the father from consuming alcohol for a period of twelve [12] hours prior to any time the child spends with the father and during any period of time the child spends with the father.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1707  of 2010

Mr J Anderson

Applicant

And

Ms S Anderson

Respondent

REASONS FOR JUDGMENT

1. I have before me today competing applications of the parties in relation to the young daughter of their relationship E born in September 2004, and who is hence some 6 ½ years of age.

2. The matter already has a long history of allegations and counter allegations extending now for a period of some 12 months.  A number of attempts have been made to assist the parties in understanding the impact of their bitter rivalry upon the child but, regrettably, it seems that neither of them has received that message and as a consequence the child, whom they purport to be there to protect, is the one who is suffering.

3. There have been a number of orders made in the past to try and assist a resolution and to assist the parties to enjoy their time with their daughter, including orders made on 10 November 2010.   In those orders, equal shared parental responsibility for the child was afforded to the parties with orders that she live with the mother but that the father spend regular time with her, essentially being weekend time, during school terms and holiday time otherwise.  There were also some orders for telephone communication and, regrettably, orders that needed to be made to ensure that her education could continue at the W Primary School and that neither of the parties altered the child’s principal place of residence.  

4. Many of those orders were designed to try and provide some stability in the child’s life and it was a credit to the parties on 10 November 2010 that those orders were able to be made by consent.  At that time it looked like the child’s life would improve and that the parties had reached a situation where they could understand the importance of the other in the child’s life and support the relationship of each parent with the child.  That did not last long. 

5. The Court ordered the preparation of a Family Report and there is now one before the Court which is dated 23 March 2011.  That report was prepared by Mr M who is a person well known to the Court and a highly qualified individual of long standing in this jurisdiction.  There are some very sad aspects of the report where it is quite obvious that the child is having to adopt an adult role and try to, if I can use the expression, “broker the peace” between her parents.  She is even handed in her expressions of the time that she spends with each of her parents which can be seen from pages 11 and 12 of the Family Report where she does her best to be even handed about enjoying time with each of her parents.

6. Mr M, in his assessment which commences at page 17 of that report, is particularly scathing of the parties and their inability to subjugate their own interests to the interests of their young daughter.  It seems that they are so caught up in the feud between themselves that they are unable to focus their primary concern upon the child, whom the report quite clearly indicates is suffering as a consequence.  What the future holds for the child is concerning.  It is not too late for the parties to try and redress that situation and improve their daughter’s life but the indicators at the moment would suggest that there is a great deal yet to be done before that can occur.

7. The mother has now filed another Application in a Case and in it she this time seeks orders that any time the father spends with the child be supervised.  She further seeks injunctions in relation to alcohol consumption by the father.  The allegations that the mother makes against the father as contained in her Affidavit filed on 22 March 2011 could well be false.  Equally, they could be true.  There is also the possibility that there are elements of truth in it, but those matters can only be substantiated during trial proceedings when each of the parties are cross-examined.

8. The fact of the father’s alcohol consumption though is a continuing theme throughout these proceedings, not just in the reports and allegations of the mother but contained also in information from independent sources.  The one that causes me the most concern at the moment is the constant references by the child to her father’s drinking in the Family Report prepared by Mr M.  If the father is consuming alcohol, particularly to excess, in the presence of his daughter and that evidence emerges during the trial to be true, then his relationship with his daughter will suffer considerably.  If the mother has made false allegations against the father, then her relationship with the child also will suffer by orders the Court will be obliged to make. 

9. However, as is evident from Section 60 CA of the Act and Section 60CC, the Court’s primary obligation, not just legally but morally, is to the child.  Her interests must be protected.  Whilst there are concerns in relation to the husband’s drinking and the manner in which it impacts upon the child, it is necessary for the Court to make orders which provide a protective environment for this very young child.

10. Regrettably, a matter which I note also in the Family Report is that the parties seemed to be in a position of moving towards a negotiated outcome in accepting the necessary role that each of the parents was to play in the child’s life.  However, that deteriorated during the process of the assessment or otherwise and for other reasons.  Thus the child’s life has gone backwards since that last occasion.   

11. Until the Court has the opportunity of getting to the bottom of the matter, I propose to make orders that the father’s time with the child be supervised so that if indeed he has a drinking problem, there will be others there to protect the child at that time.  If he does not have a drinking problem then those supervisors will be in a position to support his case in the giving of evidence during the trial of the proceedings.  In any event, I perceive that on an interim basis that is the best that can be done to cater for the child’s needs.

12. I will not trawl through the many provisions of Section 60CC.  I have had regard to both the two primary considerations and to all the additional considerations in framing these orders.  As is the case in all of these matters, the two primary considerations present a dilemma for the Court in that they oblige the Court to make orders that both maintain the relationship of a child with both parents in a meaningful way, but also protect the child from harm.    I have considered all of those provisions in a general way and do not believe it is necessary for me to articulate reasons seriatim in relation to each individual sub-section. 

13. I am advised by Counsel for the mother that Families SA will be shortly undertaking another interview with the child.  That may assist in throwing some light on the true situation.  As will the appointment of an Independent Children’s Lawyer.

I certify that the preceding thirteen (13) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 25 March 2011.

Associate: 

Date: