Bilney and Brisco & Anor

[2011] FamCA 540

FAMILY COURT OF AUSTRALIA

BILNEY & BRISCO AND ANOR [2011] FamCA 540

FAMILY LAW - CHILDREN – interim orders – with whom a child lives and spends time – where the maternal grandmother has been convicted and given a suspended sentence for violent conduct towards the father – best interests – orders that the children reside with the father and spend supervised time with the mother – further orders that the children’s time with the maternal grandmother be suspended.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms J Bilney

RESPONDENT: Mr Brisco

MATERNAL GRANDMOTHER Ms Y Bilney

INDEPENDENT CHILDREN’S LAWYER: Adey Lawyers

FILE NUMBER: ADC 6474 of 2007

DATE DELIVERED: 30 June 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 30 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE MATERNAL GRANDMOTHER: n/a

SOLICITOR FOR THE MATERNAL GRANDMOTHER: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adey Lawyers

Orders

1. The father’s Contravention Application filed on 3 June 2011 is dismissed.

1. The Contravention Applications are referred to the 12 July 2011 at 2.30 pm before the Registrar to ascertain the evidence being called to support each of the contraventions in the proceedings and the likely length of the trial in those contraventions and to allocate a trial date before a Judge to conclude all of the now outstanding contraventions.

1. Pursuant to Section 91B of the Family Law Act1975 as amended THAT the Court requests the intervention of the Minister for Families and Communities – Families SA in these proceedings and to advise the Court if it is proposing to intervene in these proceedings by informing the Registrar before the hearing on 12 July 2011.

1. The maternal grandmother is to complete the form required by the Legal Services Commission in relation to the costs of the Independent Children’s Lawyer and to return the same to the Legal Services Commission within seven [7] days from today.

1. This matter is adjourned to 5 September 2011 at 2.15 pm in the Magellan Directions List (allowing 1 hour) when further argument will be held in relation to the interim orders.

DURING THE PERIOD OF ADJOURNMENT AND PENDING THE DETERMINATION OF THE MATTER ON THE ADJOURNED DATE IN SEPTEMBER 2011 IT IS ORDERED THAT:

1. The orders are continued for the children to live with the father.

1. Paragraph 2 of the Orders of 15 March 2011 is suspended in relation to the maternal grandmother spending time with the children.

1. The orders are continued for the mother to spend time with the children at Contact Centre 1 once a fortnight on the Sunday.

IT IS NOTED that publication of this judgment under the pseudonym Bilney & Brisco and Anor is approved 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

Applicant

And

Mr Brisco

Respondent

And

Ms Y Bilney

Maternal Grandmother

EX-TEMPORE REASONS FOR JUDGMENT

1. In relation to the interim orders the Court notes with regret that the finalisation of significant matters in dispute would need to be determined before the Court is in a position to make conclusions in relation to the best interests of the children.  The contravention proceedings are being maintained save and except the father has agreed to the dismissal of the contravention proceedings he has brought.  It is necessary therefore for the Court to make some interim determination this morning in relation to the parties’ competing applications in relation to where the children should live, who they should spend time with and upon what conditions that time should be spent.

2. There are significant disputes in the material before the Court and the Court therefore needs to rely upon the material that could be considered to be as independent as possible, namely, the CAMHS report and Dr B’s report. The court also has the benefit of the submissions of counsel for the Independent Children’s Lawyer. Until such time as further time can be given to hearing all of the submissions of the parties the court needs to take into account the provisions of Part VII and in particular section 60CC of the Family Law Act 1975 (Cth) and the primary considerations which require the children to be protected from harm but also to give consideration to maintaining a meaningful relationship with the parents and persons relevant, in this case the maternal grandmother.

3. The Court is also required to give serious consideration to the impact of family violence upon the children.  The Court currently has before it one of the affidavits of the maternal grandmother filed on 14 June 2011 to which is annexed the suspended sentence bond in relation to the maternal grandmother’s conviction of an act likely to cause harm in September 2010.  The Court’s understanding is that that was an occasion where there is a charge resulting from the allegation of the grandmother acting violently towards the father and in the presence of the children. 

4. The grandmother tells the Court today that she is proposing to appeal those orders and take further steps in relation to those criminal proceedings.  However the conviction and sentence of imprisonment of six months which has been suspended is a significant factor when dealing with family violence.  The emotional and psychological welfare of the children is important. 

5. The next available date for the proper hearing of this matter, even on an interim basis is 5 September 2011 at 2.15 pm when further argument will be heard in relation to the interim orders.  Pending that hearing I am satisfied on the material before me that it is in the best interests of the children that the orders providing for them to continue to live with the father should be maintained and pending that hearing that the orders in relation to the maternal grandmother spending time with the children be suspended.

6. In relation to the mother’s time with the children I accept the submissions of the Independent Children’s Lawyer that the orders providing for the mother to have time supervised by Contact Centre 1 be continued on the basis that such time be spent on a Sunday once a fortnight. 

7. Those orders are made pending further determination of the matter in September when more time may be available considering that I have a trial commencing at 10:00 am and another interim matter of some substance to deal with before that trial commences.  The next date is the listing before Registrar Paxton of the contravention hearings on 12 July at 2.30 pm, save and except of course the father and the grandmother have an appointment with the Family Consultant this morning. 

8. I make a formal note that the matter has been placed in the Magellan lists due to the allegations of sexual abuse made by the mother and the significant allegations of ongoing violence having occurred in the presence of the children. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 30 June 2011.

Associate: 

Date:  13 July 2011