Baldwin and Davis

[2012] FamCA 434

FAMILY COURT OF AUSTRALIA

BALDWIN & DAVIS [2012] FamCA 434

FAMILY LAW - CHILDREN – Interim Orders - with whom a child lives – with whom a child spends time – with whom a child communicates – order that child live with the mother and spend time with the father

FAMILY LAW - PRACTICE AND PROCEDURE – Directions made for filing of trial documents

Family Law Act 1975 (Cth)

APPLICANT: Ms Baldwin

RESPONDENT: Mr Davis

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: CSC 469 of 2011

DATE DELIVERED: 30 May 2012

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 30 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Benson

SOLICITOR FOR THE APPLICANT: Bottoms English Lawyers

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. All previous parenting orders be vacated.

2. IT IS NOTED that parental responsibility in accordance with s 61C of the Family Law Act 1975 (Cth) (“the Act”) and that the presumption under s 60DA of the Act does not apply.

3. The child D born on … January 2006 live with the mother and the father spend time with the child as follows:-

   (a)During the school term each alternate weekend from the date after this order from after school on Friday until the commencement of school on Monday, or the commencement of school on a Tuesday, if Monday is a pupil free day.

   (b)For one half of the school holidays being the first half and the alternate weekend time to re-commence the first weekend after the commencement of each school term.

4. IT IS DIRECTED that the parties ensure that the child attend H School on every school day and provide each other with:-

   (a)a medical certificate for each day the child is absent.

   (b)A telephone call to advise the reason for the child’s absence as soon as practicable or possible.

5. The time the child spends with the father is subject to:-

   (a)keeping the Independent Children’s Lawyer informed as to his current residential address and telephone number.

   (b)Obtaining a letter from his partner Ms B confirming that she will inform the Independent Children’s Lawyer if the father ceases to live with her.

   (c)The father arranging to meet with Mr P at a date reasonably arranged by the Independent Children’s Lawyer on or before 3 August 2012.

6. UNTIL FURTHER ORDER the parties are restrained from physically disciplining the child in any form.

7. UNTIL FURTHER ORDER the parties are restrained from consuming or being effected by alcohol while the child is in their care or supervision.

8. UNTIL FURTHER ORDER the parties are restrained from demeaning, belittling or abusing the other party or members of the other party’s family in the presence or hearing of the child.

9. IT IS FURTHER DIRECTED that each party shall notify the other party and the Independent Children’s Lawyer of any significant event affecting the child’s health, welfare and development including education.

10. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

11. These proceedings be listed for a one day hearing in September 2012 at Cairns.

12. IT IS FURTHER DIRECTED that the parties file all of the affidavit material upon which they intend to rely on or before 12 noon on 3 August 2012.

13. These proceedings be listed to the call-over for the September sittings at 9.30am on 21 August 2012 by dialling … .

14. IT IS FURTHER DIRECTED that there be no hearing fee.

15. All parties be restrained from filing any further material following 3 August 2012.

16. IT IS FURTHER DIRECTED that the Independent Children’s Lawyer forward to the father a copy of ss 60B and 60CC of the Act by ordinary pre paid post to his current address at … C Street, Town E in Queensland within seven (7) days.

17. IT IS FURTHER NOTED that the parties can rely upon the affidavits which they have previously filed provided that they give notice to the Independent Children’s Lawyer and the other party.

IT IS FURTHER DIRECTED

1. That each party shall notify the other party and the Independent Children’s Lawyer of any significant event affecting the child’s health, welfare and development including education.

2. A transcript of the evidence of the father be taken out and placed on the Court file.

3. The reasons for these interim orders be taken out and placed on the Court file.

4. Pursuant to section 91B of the Family Law Act1975 the Court requests the intervention of the Director-General of the Department of Communities, Child Safety and Disability Services in the proceedings relating to the D.

5. That the Registrar advise the said Director-General forthwith of this request.

6. That a copy of the affidavit and report of Mr P filed 17 April 2012 the affidavit of the maternal grandmother’s Ms W filed 27 September 2011 and the affidavits of the mother filed 19 March 2012 and 30 March 2012 to the Department of Communities, Child Safety and Disability Services together with the latter from the H School dated 25 May 2012.

7. IT IS CERTIFIED

8. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baldwin & Davis 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 CAIRNS

FILE NUMBER: CSC 469 of 2011

Ms Baldwin

Applicant

And

Mr Davis

Respondent

REASONS FOR JUDGMENT

1. This is an application in a case in relation to D, (“the child”) who was born in January 2006 and who is now aged six.  It is an application by the mother for an order that the child reside primarily with her and that the child change schools from H School to S School.  In terms of that application the father’s response is essentially as long as the child is safe and he sees the child, time is important but not that overwhelming.  The father’s response is that he does not want the child to change schools because he says that since the change of schools from S School last year to H School this year the child’s education has been better.  The mother on the other hand says the child has no friends at the school which he attends and is having discipline problems at that school.  The Independent Children’s Lawyer’s view is that I ought not to change schools at this stage but I ought to expedite the hearing.

2. The material before me in this application was two affidavits of the mother, one filed 19 March 2012 and the other filed 30 March 2012.  The material in that affidavit has been set out by counsel for the mother in her submissions.  In addition the mother replies upon an affidavit of the child’s maternal grandmother filed 27 September 2011, in particular paragraphs 28, 29 and 30.  The parties also rely upon a partial Family Report prepared by Mr P (“the Family Consultant”) filed 17 April 2012 and the father tendered a letter from Ms R, the principal of H School, dated 25 May 2012.

3. This is a difficult and complex matter because of the various demons that both parents have to address.  The mother has in the past and perhaps at present, although I do not know as to the present, abused alcohol to the extent that it has significantly impacted upon the welfare of the child and the mother has engaged in criminal behaviour for which she was incarcerated last year.  The mother is in a relationship with Mr M, of whom I obtained a formal undertaking today not to discipline the child.  Counsel for the mother described Mr M as a stabilising influence.  The Family Consultant was not so kind in relation to his concerns about Mr M.  I have accepted Mr M’s undertaking and I make it clear to all concerned that if Mr M breaches that undertaking imprisonment will be a significant and likely outcome for him.

4. This child has some enormous problems which are set out in the Family Report.  The child has been exposed to violence at a significantly high level and to that end I note the history provided by each of the parties and by Mr P and in the instructions to Mr P.  For an adult that sort of history would be chilling; for a child it would be terrifying, to say the least, and is likely to impact upon the child’s future development.  There are significant issues in dispute between the parties and in an interim hearing such as this I cannot make a determination and ought not make a determination of those issues.  My task is to put in place arrangements which, having regard to all the facts and circumstances presently in place, meet the best interests of this child.

5. In doing so I have to have regard to the factors under section 60CC of the Family Law Act 1975 (Cth). Those factors include the benefit of the child having a relationship with both parents. What comes out clearly from the affidavit is that the child loves both of his parents, warts and all, and probably wants a relationship with both of his parents. There is probably a benefit for the child having a relationship with both of his parents provided he is safe; that he is safe from violence and safe from alcohol and safe from drugs. This is a matter where if the child safety authorities do not intervene I will be trying to work out which is the lesser danger for the child rather than which is the best place for the child to live, which is troubling to say the least, on the material which I have before me at the moment.

6. In terms of the views of the child he is a still but a child.  I was taken when I read the Report earlier today that he wanted to “grow up to be a rock star because I like singing and I am a good singer and I like singing in the shower”.  That tells us a lot about this child, that he is but a child and that he has dreams and ambitions and that if the parents can calm down and put their own demons behind them he has a chance first of all to have a childhood, because I suspect he has lost part of his childhood already, but also to have a childhood over the next six or seven years before he hits puberty, which I suspect for this child is likely to be a difficult passage.

7. The Family Consultant was concerned about the attachment of the child to each of the parents and the Family Consultant was concerned that the child was in any many ways endeavouring to connect with him, such was his desire and need for a responsible parent to care for him.  The Family Consultant said that whilst no formal assessment had taken place it was likely that there was an Attention Deficit Hyperactivity Disorder or at least the beginnings of a significant conduct and/or oppositional disorder without the benefit of appropriate boundary setting and stable parenting. 

8. The Family Consultant noted that the Court is unable, on the current material, to make final orders, and I agree with him, although I hope that by September there will be significant material upon which to make that.  He noted the mother’s presentation confirmed a significant history of past antisocial and intermittent criminal behaviour, however he noted that she was adamant at present that she was doing parole properly this time, and was a more stable parent.

9. It is significant that the view of the child is that he misses his father.  To cite his words, being let down all the time.  I am not convinced that either parent have particularly good parenting skills.  I am not convinced that either parent will encourage the relationship of the child to the other parent, such is the hostility before them.  It is one of these days in Court when I can see the parties staring and looking at each other, and I can feel the tension and animosity in Court, which perhaps for the parents might be something seen as boisterous, or manly, but for a child it would be a terrible position in which to find himself. 

10. I do not, at this stage, in the light of all this evidence, propose to change the child’s school, because it seems to me that if in September I conclude that the old school was a better one, this child would then face a series of school changes, one to the other, to the other, to the other, and I do not think that that would be in his best interest.  I do, however, consider that it’s appropriate that he spend more time with his mother than his father at the present time, so that there is some stability as the child clearly seeks, and the Family Report suggests.  I intend to provide that stability, and if that means the mother has to drive four kilometres, or 10 kilometres to school each day, so be it. 

11. This matter will be heard in September, I hope, and after hearing then the schooling of the child can be changed.  In any event, if I change schooling this year, I would probably change it at the end of the year, so that the child had a fresh start in 2013 rather than be taken out of a school mid-term.  I am a long way away from school, sadly, back in my own experience, but I know that when children start at the beginning of the year, it is always easier than coming into a school halfway through a year. 

12. The father’s residence has been troublesome and he gave some indication of that, although he disputes the mother’s view of it.  I intend to require the father to inform the Independent Children’s Lawyer of any change in his residence, and I will require him to get a letter, or an undertaking from his current partner to inform the Independent Children’s Lawyer of any change in residence, so that if there is a change in residence, the details of the new residence of the father can be ascertained, and the place that the child attends we can know will be safe and secure, and a place where the child can be properly cared for.  It seems not an onerous responsibility to put on them.

13. I will also make the father’s time with the child subject to him seeing Mr P within six weeks.  It is my hope that the father sees Mr P with his partner, Hayley, tomorrow, so that we can get a social scientist’s view as to the nature of the relationship between the father, Ms B, and the child, and more importantly the child, and the father, and Ms B, so that I have a complete report. 

14. I will also make orders that the matter be listed for hearing.  This matter, I think, was transferred from the Federal Magistrates Court, and I think I have a discretion in those circumstances to avoid, or to prevent, or to direct that there be no payment of a hearing fee if it’s transferred from that Court.  It would seem to me that that would be a good thing to do in this matter, because I suspect that money in this family is a fairly limited and precious resource, and if it can be avoided paying it back to government, that would probably be a good thing, although I’m not sure that those in Canberra would quite agree with that.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 30 May 2012.

Associate:     

Date:              30 May 2012