Beaumont and Timbs

[2016] FCCA 2800

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEAUMONT & TIMBS [2016] FCCA 2800

Catchwords:
FAMILY LAW – Parenting – first return date – interim orders made in absence of the father after he left the Court.

Legislation:

Family Law Act 1975

Applicant: MS BEAUMONT

Respondent: MR TIMBS

File Number: MLC 5548 of 2012

Judgment of: Judge Harland

Hearing date: 18 October 2016

Date of Last Submission: 18 October 2016

Delivered at: Melbourne

Delivered on: 18 October 2016

REPRESENTATION

Counsel for the Applicant: Ms Jenkinson

Solicitors for the Applicant: Lampe Family Lawyers

The Respondent: In person

ORDERS

1. The proceeding is adjourned for Mention Hearing on 8 March 2017 at 9.45am.

2. The parties not be permitted to rely on material filed less than (3) three working days prior to the next Court event.

3. Any Subpoena material to be relied upon at the Mention Hearing must be made returnable at least (3) three days prior to the Hearing.

4. Pursuant to order 2 and 3 herein, leave will only be granted in circumstances of urgency.

5. The orders made 17 December 2012 be suspended.

6. The child X born (omitted) 2005 (“X”) live with the mother.

7. That the father spend time with X as agreed and such time is to be supervised by a supervisor consented to by the mother.

8. The father file and serve a Response, Affidavit in support and a Notice of Risk within 28 days of this order.

NOTING

1. The father is at liberty to file an application in a case and have the matter listed before the listing of 8 March 2017.

2. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5548 of 2012

MS BEAUMONT

Applicant

And

MR TIMBS

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. Today is the first return date of the mother’s application to vary final parenting orders that were made in 2012 with respect to X born (omitted) 2005 who is now aged 11 (“X”).  The father was personally served with the application on 14 September 2016 and signed the acknowledgment of service and attended Court today.  He has not filed any material.  The father’s presentation in Court was somewhat unusual.  He was fairly agitated and clearly was not interested in either having constructive discussions either with Ms Jenkinson of counsel for the mother, or a duty solicitor or indeed with the Court but was rather insistent that he wanted an adjournment with no orders being made as he wanted private orders with the applicant. The father was quite aggressive and continually interrupting me when I was trying to explain the process.  The fact is that the applicant is entitled to seek court orders in the absence of agreement, it was necessary to adjourn because of his disruption to the Court.  He had indicated that he was going to see the duty lawyer but I am advised by Ms Jenkinson that security notified her that he left the Court building, and therefore I proceed in his absence today.

3. The applicant mother has filed an affidavit in support of her application to suspend the 2012 orders.  Initially this morning she was seeking orders that still provided for the father to spend time with X but on a more limited basis and with another adult in substantial attendance.  It is the mother’s case that the orders have not been complied with for some time and the father has a concerning history of mental health and behavioural issues.  The mother’s solicitor helpfully issued several subpoenas, which have been inspected and Ms Jenkinson has summarised some of the relevant subpoenas which includes:  when the father was hospitalised in the psychiatric ward of (omitted) Hospital in 2014 – from that time he has not had overnight time with X.  He was diagnosed with schizoaffective disorder and depression and anxiety and Ms Jenkinson submits the hospital notes show that one of the difficulties with the father that he is non-compliant with medication and will then self medicate with drugs which can induce psychosis in him, so it is very much an issue.  As the mother sets out, a rollercoaster depending on whether the father is compliant with medication and well, and other times when he is not.

4. It is clear from the mother’s affidavit is that X is significantly detrimentally affected by these changes in the father and whilst the mother’s case is that X should continue to have a meaningful relationship with her father it needs to be safe and it needs to be mindful of her own mental wellbeing.  X has problems with urinary incontinence and that appears to be that this could well be stress related.  She is seeing a psychologist and has been seeing a psychologist since 2014 and continues to see her once a fortnight.  The mother says that the father has had a couple of joint sessions with her.  The mother also sets out concerning comments that X has made this year of things that the father says to her and these are set out at [39] and [40] of her affidavit.  She also sets out text messages that the father has sent as well as annexing some of those texts.  Some of the texts are just bizarre.  They are difficult to follow and it certainly seems that there is some basis there for the mother’s concerns.  In addition, the mother, significantly, has a five year intervention order in place and the father was convicted of contravening that order and was placed on a Good Behaviour Bond in 2015. The mother says she has had to seek extensions of previous intervention orders.

5. I am satisfied on the material that is before me which is, of course, the mother’s version without the father’s input – through his own choice – that X be at unacceptable risk of emotional harm if the orders were to remain in place.  Given the father’s concerning presentation this morning, in my view, any time that the father spends with X for the moment would need to be supervised.  The mother’s proposal had been for an adult to be in substantial attendance and for that time to be reduced but after the father’s presentation she simply seeks that the orders be suspended.

6. The father will have the opportunity to file material which he should have done before today given the application documents are clear which involve that a response is to be filed within 14 days after service.  It is somewhat uncertain as to whether or not the father will file material and attend Court.

7. I am going to put it over to 8 March 2016 in the duty list next year.  He can always file an application to bring it back earlier.  There is an avenue for him to spend time, provided that it is supervised and I am satisfied that it is appropriate in the circumstances, and I will direct that he file and serve any material within 28 days.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  31 October 2016