Barnes and Simons - [2009] FMCAfam 185

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARNES & SIMONS

[2009] FMCAfam 185

FAMILY LAW – Parenting – orders pending trial.

Family Law Act 1975 (Cth), ss.60B, 60CC & 61DA

Applicant:

MR BARNES

Respondent:

MS SIMONS

File number:

ADC 2873 of 2008

Judgment of:

Lindsay FM

Hearing date:

26 February 2009

Date of last submission:

26 February 2009

Delivered at:

Mount Gambier

Delivered on:

26 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr O’Keeffe

Solicitors for the Applicant:

O’Keeffe Lawyers

Counsel for the Respondent:

Mr Cranswick

Solicitors for the Respondent:

Hume Taylor & Co.

ORDERS

The parties file and serve affidavits of all evidence upon which they intend to rely at trial by not later than 10 April 2009.
The applicant pay the hearing fee or file a Remission Certificate in respect thereof by not later than 10 April 2009.
Pending trial, the child [X] born [in] 2007 do live with the mother.
Pending trial, the mother do all such things as may be reasonably required to facilitate the said child spending time with the father on each Tuesday and Friday from 10am until 2pm, commencing on Friday 27 February 2009, with such time-spent to commence and conclude at the [M] Police Station.
Pending trial, the exercise of the father’s time-spent with the said child in accordance with paragraph 4 of this Order is conditional upon either the paternal great-grandmother, Ms B, or the paternal grandfather,
Mr B, being responsible for all transportation of the said child during all such periods of time-spent.
There be liberty to the father to apply at short notice for a recovery order in the event of any non-compliance by the mother with this Order.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MOUNT GAMBIER

ADC 2873 of 2008

MR BARNES

Applicant

And

MS SIMONS

Respondent

REASONS FOR JUDGMENT

I will briefly outline the procedural history of this matter. It first came before the Court on 30 July. The father was represented; the mother was in person. It was adjourned to 27 August. I made an order for the child to live with the mother. I refused the father’s application to spend time with the child. The mother had not, to that point, filed any answering documents and she was ordered to file and serve them by 20 August.
I do not have an affidavit of service but my recollection is that service had been effected relatively close to the date of the hearing. In any event, she was given a further three weeks to file some answering documents, and, on account of the matters she raised from the bar table, I made no order for the father to spend time with the child.
The matter was back before me on 27 August. Once again the mother was in person. She had not filed her documents, and I adjourned the matter to later in that same week, it would seem, and extended the time for her to file her answering material to 29 August.
On 29 August Mr Aujard appeared on behalf of the mother. The matter was further adjourned to 24 September, and I ordered the parties to enrol in the [M] Children’s Contact Service. Once again, throughout these various hearings, I have been making an order that restrained the mother from moving the child from the [M] area. Once again, no orders for time spent were put, my recollection, being that further time was sought in order to put answering documents on the file.
On 24 September the mother was represented. I heard argument, and I adjourned the matter to 29 September to deliver reasons. That in turn was adjourned to 30 September.
To this point there had still been no affidavit filed by the mother. At some stage during the course of these events an affidavit was handed up to me, which was not filed but was sworn. It was prepared, I think, by a legal practitioner whose instructions were subsequently withdrawn, and I am assuming, from the fact that it is not relied upon today, that it is not relied upon by the mother today and I neither have an affidavit filed nor an affidavit in any form before me giving her account of various concerns that have been raised from time to time relating to the time to be spent by the father.
In any event, on 30 September I made an order that saw him spending time on one occasion per week, at the [M] Children’s Contact Service, with the child.
The matter was adjourned to 11 December. On that day the mother’s solicitor sought leave to withdraw saying his instructions had been terminated, and there was no affidavit on the file from the mother.
Nearly two and a half months have passed since then and there is still no affidavit on the file, by the mother. So I have indicated, during the course of argument, but again, just for the purpose of these reasons, I should indicate that it is about - I said seven months; it is nearer to six months since the matter has been before the Court but the mother is yet to file an affidavit setting out, on her oath, the grounds of her concerns relating to this question of the father spending time with the child.
On 11 December we had the benefit of a report from a Ms J who works at the Children’s Contact Service at [M]. As is customary with officers of such a service, it is highly detailed and it tells me about the observations of the persons in that service over the period 5 October to 30 November.
I summarised this material on the last occasion; I do not want to have to go through it again. It indicated a child, on occasions, highly stressed when his mother remained present at the contact service but relaxing quickly when she was absent, and the interaction between the father and the child being, according to the officers of the service, entirely appropriate when it occurred.
This is not a report in the sense that it makes recommendations; it only gives us data; it gives us the observations of this person, but the inference to be drawn from the material, really, the inference the author of the report is inviting to be drawn is that the principal stressor at the service in relation to the child is the mother.
The report records the mother’s representations to the service that the visits were being unsuccessful; they were impacting on [X] and it was not in his best interests for it to continue. The staff responded to her that their experience showed that the visits went very well at the centre.
There then followed some argument, whereby the mother contended, for reasons that are not clear at all, to the service that the time should be reduced to fortnightly. That was not any part of the order that was made. That was brought to her attention by the staff of the service, but that did not make any difference. She acted not in accordance with what was the case but in accordance with what she wanted to be the case, and that led to certain periods of time being missed.
I gave extensive reasons on 11 December, and it is rather paradoxical that this matter has consumed so much Court time on interlocutory matters and consumed so much time in terms of me giving reasons, when we have yet to extract from the mother anything resembling a discharge of her responsibilities as a litigant.
It is fatuously easy to make allegations, raise concerns, create anxieties and fears relating to parenting orders issues, and in particular the question of a parent’s interaction with a child, particularly against the background of a high degree of conflict between the parties.
This has now gone on for six months, and, despite Mr Cranswick’s eloquent attempt to extend that time further for the mother, to give her yet a further opportunity to accept her responsibilities as a litigant and file relevant material, I think the matter, being so close to trial, needs to be dealt with today and I am dealing with the matter upon the basis that the mother has not, in six months, filed any affidavit material.
The inference I draw is that there is a high degree of probability that she does not intend to file any and that she does not intend to do that because she does not want her contentions to be subject to the same scrutiny and the same testing that any other litigant in this Court is obliged to submit themselves to, as the father has been obliged to submit himself to, to give an account on oath, to understand that, consequently, that account on oath is going to be tested in cross‑examination, to be constrained in the way in which the case is presented on subsequent occasions by the way the case has been adumbrated in the affidavit material. The mother has simply indicated that she has no intention of accepting those responsibilities and presumably thinks that this position can maintain indefinitely.
Every courtesy was extended to the mother, at the early stage of proceedings, to conduct the matter upon the basis of simply making assertions from the bar table, and I did that because I, at that stage, accepted in good faith the mother’s contentions that, with just a little bit more time, she would get around to filing her affidavit, but months and months have gone by since that time.
It is not assisted by the bad faith in which she dealt with the members of [A] Contact Service, the bad faith she exhibited in relation to her insistence that the time spent was going to be reduced from weekly to fortnightly.
Again, upon the basis of instructions given to her counsel but not on the basis of any account given on oath, there are some excuses offered as to why she was unable to comply with the order to provide time spent between the child and the father on Christmas Day. It simply did not happen.
I do not accept her explanation and I do not accept it because it is not given on oath. No adequate reason has been advanced by her as to why I would not expect to have her explanation on oath as to this very significant default by her in terms of the orders.
Interaction between a parent and a child on Christmas Day is important, from the perspective of both the parent and the child. The child’s best interests are my paramount consideration but the parent’s interests cannot be overlooked.
It is a patently important matter to be able to spend time with a child on Christmas Day and that opportunity, for Christmas 2008, was lost because the mother simply chose to do as she wanted and, having done as she wanted, then decided she would not even go to the trouble of filing an affidavit explaining why, in the two months that have passed since Christmas Day. That standard of behaviour on the part of a litigant in this Court, in any Court frankly, is just unacceptable.
I did opine on the last occasion, in the presence of the mother, that I was hoping that this subsequent adjournment would provide an opportunity for reflection by her on certain matters, but quite the opposite has happened. There has been no advance at all on her position. If she thought conducting a dogged and a comprehensive opposition campaign against the father in terms of him introducing himself to the life of the child after a lengthy period when there has been no interaction would see him abandon his application then she is mistaken in that. He is persisting with his application. The application will be dealt with on its merits; it will not be dealt with by him retreating in the face of her intransigence. If she was counting on that, that is just another fundamental miscalculation Ms Simons has made in respect of the conduct of these proceedings.
Today, though, through her counsel, she raises concerns relating to the father’s conviction in respect of traffic offences. They are characterised as traffic offences, but it does not mean they are minor; particularly not an offence of driving whilst disqualified. Ordinarily, I think I can take judicial notice of the fact, even though it is not within my jurisdiction, that imprisonment would be a common penalty. Imprisonment was imposed, but I am told it was suspended and it was suspended upon entering into a bond and there is a term of the bond that he is under the supervision of a parole officer for three months and that includes direction to attend courses relating to alcohol.
I am obviously prepared to draw the inference on the basis of what is agreed today that there is no conflict about this from the father. I am prepared to draw the inference that the sentencing judicial officer thought that that was a matter that required detention. I think it is important that that aspect of the matter is given recognition in the orders I make for him to spend time with the child.
I do not consider the fact of the convictions or the nature of the penalties imposed, though, to be so irregular as to disqualify him from the opportunity of spending unsupervised time with his child. A different position would maintain if I had affidavit material from the mother which placed this sort of behaviour in context; in other words, suggested that this behaviour is behaviour he conducted in the past, that he, under the influence of alcohol, behaved in a certain way. All of the things that one would normally expect to see concerned parents raise in the face of applications for time spent by another parent.
This recent offending, of which he has been convicted and which I regard as very serious, could have been placed in a context whereby I was able to assign to it more significance than I am going to do today, less than the mother apparently wants me to assign to it.
At the risk of repeating myself, we have not got that affidavit, and we have not got that affidavit despite the mother having first appeared before this Court with similar allegations on 30 July 2008. The offence is serious but it is not in my view of sufficient seriousness or it is not put in a context that would enable me to rely upon that aspect of the matter as a reason for not granting the orders the father seeks, if I was otherwise prepared to make the orders.
These are proceedings pursuant to Part VII of the Family Law Act1975 (“the Act”). I have already indicated that the child [X]’s best interests are my paramount consideration. The Act operates in accordance with certain objects and principles, and they are set out in s.60B. For present purposes, the principal objects with which I am concerned here today are the need to frame orders which guarantee the physical and psychological health and safety of the child and the need to do what is required, consistent with that, to enable the child to have a meaningful relationship with both parents. The principles that underlie the objects that are described in s.60B(2) amplify those two matters.
Section 60CC emphasises the primacy of those considerations when it sets out the considerations to be taken into account in determining what is in the best interests of the child. They are amplified in a whole raft of additional considerations that s.60CC sets out.
Because I know from the affidavit material the father himself has filed that there have been - the child is very young in any event; the child approaching 15 months or 16 months of age and in his short life there have been periods of time when the father has been absent, not through any fault of the mother his efforts to reintroduce himself to the life of the child are in that sense relatively recent.
Against that background and before I have heard any evidence at the trial or testing of his affidavits, in that context it is simply not appropriate in terms of s.61DA(2) of the Act for me to be applying the presumption of equal shared parental responsibility. That will not be happening today. That is a matter for trial.
The material I have, going back to December, from the [A] Service, insofar as it talks about the relationship between the father and the child, the appropriateness of his responses to the child, his punctuality, they are all matters that give reassurance that, in an unsupervised environment, the child would not suffer.
I should make orders that ensure that at no stage during the period of any time he does spend with the child he drives a motor vehicle; he is disqualified from doing that. Apart from the foolishness involved in him flirting with being charged with an offence that would inevitably lead to imprisonment, I think there should be an order that provides that the spending of time with the child is conditional upon the paternal grandmother being responsible for any transportation of the child during the period of any time.
I have to look at all of the information that is available before me and the only information I have is the affidavits of the father, the report of the [A] Contact Service and the unsworn assertions of the mother through her counsel as to what she says are her apprehensions in relation to the father spending time with the child.
For the reasons I am hoping I have made clear, I am not in a position to give any weight to the mother’s assertions at all. I have done so at previous hearings and she has not, for various reasons had affidavits put to the Court. I am not prepared to give them weight today. It was inevitable that we would reach this point given her determination to continuation down the path that she has adopted.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 6 March 2009