Benson and Blee

[2008] FamCA 906

FAMILY COURT OF AUSTRALIA

BENSON & BLEE [2008] FamCA 906

FAMILY LAW – CHILDREN – father’s application for communication with the children – father facing criminal proceedings in relation to a child from the mother’s previous relationship – criminal proceedings due to commence in March 2009 - application opposed – father agrees application cannot proceed until after criminal proceedings are finalised – Family Consultant recommends no contact between children and father – children do not wish to communicate with father – application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Benson

RESPONDENT: Ms Blee

FILE NUMBER: ADC 6188 of 2007

DATE DELIVERED: 27 October 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 27 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Forth

SOLICITOR FOR THE RESPONDENT: Mark Forth & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Childs

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robert Seymour

Orders

1. That the Application for Final Orders and the Application in a Case filed by the father on 6 December 2007 and the Response to an Application for Final Orders and the Response to an Application in a Case filed by the mother on 21 April 2008 be dismissed and removed from the active pending cases list.

2. That the order made on 7 January 2008 appointing the Independent Children’s Lawyer be discharged.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 6188 OF 2007

MR BENSON

Applicant

And

MS BLEE

Respondent

EX TEMPORE REASONS

1. I have before me an Application for Final Orders and an Application in a Case both filed by the father on 6 December 2007.  In the Application in a Case the father sought the following orders:

   “1.  That the Father and the Mother have equal shared parental responsibility for the infant children of the relationship [J] born on the […] day of December 1996 and [L] born on the […] day of December 2000.

   2.   That the children live with the Mother.

   3.   That the children spend time with the father as follows

   3.1On the Father’s day weekend from 7.00pm of the Friday evening preceding that weekend until 7.00pm on Father’s day.

   3.2On the weekend preceding each of the children’s birthdays from 7.00pm on the Friday evening until 7.00pm on the Sunday evening.

   3.3From 6.00pm on the 24^th December 2007 until 3.00pm on the 25^th of December 2007 and each alternate year thereafter.

   3.4For two individual one-week periods each year during a school holiday period at times to be agreed between the parties or in default as determined by this Honourable Court.

   3.5At such other times as mutually agreed between the Father and the Mother.

   4.   That the parties share the cost of travel to facilitate the children spending time with the Father in accordance with the orders being sought in paragraph 3 hereof.

   5.   That each party facilitate the children communicating with the other party when the children are living with or spending time with them.

   6.   That the requirement under the Family Law Rules that the birth certificate of the children be filed be dispensed with.

   7.   That this application be heard as a matter of urgency.”

   In the Application for Final Orders those orders were mirrored. 

2. The mother filed Responses on 21 April 2008, and looking at those documents, in the Application for Final Orders the mother sought the following orders:

   “1.  The children [J] born […] December 1996 and [L] born […] December 2000 live with the mother who shall have sole parental responsibility of the children.

   2.    The father spends time with the children facilitated and under conditions as determined by the Court.”

3. In the mother’s Response to an Application in a Case she sought the following orders:

   “1.  Until further order the children [J] born […] December 1996 and [L] born […] December 2000 live with the mother.

   2. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Regulation 7A report writer nominated by the Dispute Resolution Coordinator of the Family Court of Australia on a date and time to be advised for the purposes of the preparation of the family report and that the parties are to do all such things to authorise the report writer to obtain information material to the preparation of the family report.

   3.   The Family Report is to deal with the following matters;

   a.Any views expressed by the said children and any factors (such as the said children’s maturity and level of understanding) that would affect the weight that the court should place on those views;

   b.The matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

   c.Any other matters that the family report assessor considers important to the welfare and best interests of the said children.

   4. That pursuant to s13C(1)(c) of the Family Law Act 1975 the father attends and completes an anger management program to occur at an organisation as nominated by the Dispute Resolution Coordinator of the Family Court of Australia at such times as are requested by the organisation.

   5.   Such further and other order as the Honourable Court deems fit.”

4. The real issue though in terms of how this case should proceed revolves around certain criminal proceedings that the father is facing.  There are two children of this relationship and the mother also has a daughter N from a previous relationship.  N lives with the mother, as do the two children of this relationship. 

5. The father is facing criminal proceedings in relation to the child N and also in relation to one other child.  Those criminal proceedings involve allegations of sexually inappropriate behaviour with those children, to use a relatively neutral phrase.  The father has now been arraigned on those charges and he has pleaded not guilty, and the trial will not occur until at least March 2009. 

6. In July 2008 when the matter was last before me the father indicated that in the circumstances of the criminal proceedings he was not pursuing his application for the time being.  The issue then arose as to whether the application should be adjourned or dismissed and in the context of that discussion the father indicated that he wanted to pursue an application that the children have telephone communication with him at least until these criminal charges were resolved one way or the other.  That was opposed by the Independent Children’s Lawyer and the mother. 

7. I indicated that I wanted some expert evidence about that and I wanted to ascertain the views of the children.  I made an order for there to be a report by a Family Consultant as to that issue and I adjourned the matter to today to await the outcome of that report.  The report is now available.  It is dated 15 October 2008 and it tells me that the children were interviewed and that they were “adamant that they did not want to be communicating with (the father) by telephone, or to have any other form of contact with him for the foreseeable future”.  They gave their reasons for that as being their memories of their father as someone who acts in a frightening and dangerous way at times and at other times was just not interested in them at all.  J recalled details of the father throwing a cupboard at their mother and remembered being cared for by their grandparents rather than by the father when they were supposed to be in his care.  J in particular also referred to her belief that the father had caused N serious harm.  Thus, there are not only these serious and relevant criminal charges that the father is facing but there are allegations of domestic violence and in the household in which the children lived with their mother and their father and of the children being frightened of their father and describing him as dangerous. 

8. Now these allegations are made by the mother, they are confirmed to a certain extent by the children, but of course they are still allegations, and the father may well deny them.  Ultimately if this matter proceeded to a trial there would presumably be evidence about that and findings would need to be made, but at this point the children have been interviewed, they have said these things to the Family Consultant and as I say, in the words of the Family Consultant, they were “adamant” that they do not want to communicate with the father by telephone.

9. The Family Consultant has evaluated the wishes of the children and has said that there was no evidence that they have been influenced by anyone else in the formation or expression of their views and for his part the Family Consultant concluded that it would not be in the best interests of these children for the father to have telephone communication with them at present, and indeed he suggested that there may be detrimental consequences for the children if it occurs.  Thus his recommendation is that there not be telephone communication, or indeed any other communication with the father.

10. The father today has expressed concern about the contents of that report, but be that as it may I accept the Family Consultant’s recommendation at this point.  That was the entire purpose of having this report undertaken.  I needed to know independently and by way of expert evidence what the wishes of the children were.  I now have that before me.

11. Thus, in light of that I will not be making any order for the father to have telephone communication with the children and it is back to consideration of whether the application made by the father is either adjourned or dismissed.

12. The father in the circumstances has confirmed that he does not seek to pursue his application for the time being.  He needs to deal with these criminal proceedings first and obviously everyone needs to know the result of them because they will have a significant impact upon what happens in this case.  My view is though that given the timeframe involved there is little point in simply adjourning these proceedings and I propose to dismiss the father’s Application for Final Orders and the Application in a Case on the basis that those applications simply cannot proceed at the moment and they cannot proceed at least until March or thereabouts of next year.  There may be an entirely different set of circumstance that are applying then which would require substantial amendment, for example to the applications.  I propose to do that though on the basis that, dismissing the applications now will not prejudice the father in the event that if the circumstances warrant it he will be able to bring a fresh application once the criminal proceedings have been dealt with and depending of course on the result of that.

13. I note that there are orders in place in any event, although they are not final orders.  In January 2002 there were orders made until further order that the children reside with the mother and that she have the responsibility for the day to day care welfare and development of the children.  That order went on to provide that the mother give and the father take contact to the infant children as agreed between the parties.  I note that in the current circumstances the mother is opposed to any contact and there will clearly be no agreement reached about that. 

14. Mr Forth for the mother has not sought any further order today and he supports dismissing the father’s applications at this point and then letting him come back to the Court on a fresh application, if appropriate, once the criminal proceedings have been finalised.  The Independent Children’s Lawyer is of the same view.

I certify that the preceding 14 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 27 October 2008.

Associate