Bilney and Anor and Brisco (No 2)

[2012] FamCA 801

FAMILY COURT OF AUSTRALIA

BILNEY AND ANOR & BRISCO (NO. 2) [2012] FamCA 801

FAMILY LAW – CHILDREN – interim orders – application by the mother seeking orders that the children live with her – where the current orders provide that the children reside with the father – where the mother alleges that the children are at risk of sexual abuse by the father’s friend whilst in his care – where the matter has a long history – where the Court was not satisfied that it was necessary for the arrangements for the children to be changed – best interests – continuation of the orders for the children to reside with the father – application dismissed.

Family Law Act 1975 (Cth)

FIRST APPLICANT: Ms J Bilney

SECOND APPLICANT: Ms Y Bilney

RESPONDENT: Mr Brisco

INDEPENDENT CHILDREN’S LAWYER: Adey Lawyers

FILE NUMBER: ADC 6474 of 2007

DATE DELIVERED: 7 September 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 7 September 2012

REPRESENTATION

COUNSEL FOR THE FIRST APPLICANT: n/a

SOLICITOR FOR THE FIRST APPLICANT: In Person

COUNSEL FOR THE SECOND APPLICANT: n/a

SOLICITOR FOR THE SECOND

APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Adey

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Adey Lawyers

ORDERS

UPON NOTING:

1. The hearing of the proceedings is adjourned awaiting allocation of trial for final determination on a date to be allocated.

2. Mother advised to seek legal advice about an apology to the Court for her offensive remarks.

3. Mother advised to seek counselling in relation to her attitude to the children, the proceedings and the Court.

4. Mother warned that she would be asked again to apologise to the Court when the matter is next before the Court.

IT IS ORDERED THAT

1. The Application in a Case filed by the mother on 13 August 2012 is dismissed.

2. The current orders are continued on the basis that the children C born on … April 2005 and J born on … March 2006 reside with the father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bilney and Anor & Brisco 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 ADELAIDE

FILE NUMBER: ADC 6474 of 2007

Ms J Bilney

First Applicant

Ms Y Bilney

Second Applicant

And

Mr Brisco

Respondent

And
INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the hearing of an Application in a Case as well as the adjourned hearing.  The application that was adjourned on the last occasion was adjourned pending the reports to be prepared in relation to the mother and grandmother. 

2. In relation to the Application in a Case, which has recently been filed by the mother seeking interim orders, does not set out the orders in proper form because the mother is unrepresented:

   …

   2.New orders in relation to the children’s living arrangements be made.

   3.     New orders be made in relation to the care of the children.

   4.That the files that are recorded for the children, [C] DOB […]-04-05 and [J] DOB […]-03-06 that have been reported to C.A.R.L. for the period 2011 and 2012 be subpoenaed.

3. The matter was adjourned to await the certain steps to be taken, including the parties providing details of proposed alternative supervisors for the children to spend time with the mother. 

4. The orders also then provided for a report to be prepared in relation to the mother and grandmother.  Those reports have now been received and are on file from the Independent Children’s Lawyer.  The reports raised questions in relation to what could be described as the attitude of the mother and maternal grandmother. 

5. The mother appears unrepresented today as does the father and maternal grandmother.  The Independent Children’s Lawyer, Mr Adey, has also put submissions to the Court. 

6. This is a matter which has been before the Court for a considerable period of time and indeed has had numerous hearings and applications before it.  There are now over 260 documents on file.  The significant matters which the Court has to determine in this case are clearly what is in the best interests of the two children of the parties. 

7. The children are C who was born in April 2005 and J who was born in March 2006.  They have for some considerable period of time now been residing with the father, with orders being made in the past for the mother to have supervised time with the children.  The history of the matter is quite clearly set out in the previous Family Reports and in the judgments which have been delivered thus far. 

8. What brings the matter back before the Court today are the allegations in relation to the person known as Mr N.  Mr N has been involved in the proceedings in the past to the extent that he was a friend of the father.  It is now clear that Mr N is a person who should not have any association whatsoever with the children. 

9. The documents which are annexed to the affidavit material, which has been filed including that of the Independent Children’s Lawyer, indicate that Mr N has been the subject of orders in other Courts in relation to allegations of paedophilia.  There are also outstanding charges against Mr N, in relation to his behaviour towards the father’s son, T. 

10. The mother raises these issues on the basis that the father is not the proper person to have the care of the children on the basis that the children were in the past at risk in the care of Mr N who was described as a friend of the father.

11. I also have before me the response to the allegations filed by the father.  I am told from the bar table today that Mr N has been arrested and has been refused bail. 

12. The significant issues are the capacity of each of the parties to provide appropriate care for the children.  One of the significant questions is always the capacity of the parents to protect the children from harm. 

13. I am not satisfied that the current information that has come before the Court in relation to the recently discovered behaviour and risk to the children of Mr N’s behaviour make it necessary, at this stage, for the children’s arrangements to be changed. 

14. The material that is before the Court from the father clearly indicates that once he became aware of the risk to the children in relation to Mr N, he took appropriate steps. 

15. The mother and maternal grandmother, however, asked the Court to draw a conclusion now that the children are still at risk or that the father is not an appropriate person to provide the care for the children. 

16. Taking into account the history of this matter and in particular, the difficulties which the parties have exhibited in relation to their ongoing relationship and the ability to promote the relationship with the other parent, I am not satisfied that the best interests of the children today require any change. 

17. What is of significance is that the father was proposing that the children spend time with the mother at a children’s contact centre and in accordance with the orders made by me in July of this year, he had registered at the Contact Centre S. 

18. When it was put to the mother, after she had heard those submissions from the father and the Independent Children’s Lawyer, that she should consider spending time with the children, the mother indicated that she had not obeyed the order of July this year and she had not taken any steps to register at the contact centre.  The mother indicated that she would not have any time with the children if it meant that she had to have them supervised at a contact centre. 

19. That attitude by the mother towards her relationship with the children seems to highlight the difficulties in this matter, which seem to be rather all about the Court being involved in a dispute between the parents rather than the parents, and in particular in this case the mother, focussing upon what would be in the best interests of the children.  The mother has indicated that if the Court made an order that she spend time with the children at the contact centre, she would not register with the contact centre and would not participate in such an arrangement. 

20. It is therefore not in the best interests of the children for there to be an order requiring the father to take the children to a contact centre, if in fact that is just a disruption to their normal routine.  I therefore propose that the current orders continue on the basis that the children continue to reside with the father. 

21. I therefore dismiss the Application in a Case filed by the mother and leave the determination of the proceedings to the trial.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 7 September 2012.

Associate: 

Date:  20 September 2012