Blair and Johnson
[2008] FMCAfam 453
•22 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BLAIR & JOHNSON | [2008] FMCAfam 453 |
| FAMILY LAW – Parenting orders – application by father to spend time with children – allegations of abuse – appointment of an independent children’s lawyer. |
| Family Law Act 1975, Part VII |
| Applicant: | MR BLAIR |
| Respondent: | MS JOHNSON |
| File Number: | NCC735 of 2008 |
| Judgment of: | Lindsay FM |
| Hearing date: | 22 April 2008 |
| Date of Last Submission: | 22 April 2008 |
| Delivered at: | Newcastle |
| Delivered on: | 22 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Duane |
| Solicitors for the Applicant: | Kekeff & Associates |
| Counsel for the Respondent: | Mr Connor |
| Solicitors for the Respondent: | The Argyle Partnership Lawyers |
ORDERS
Further consideration of all interim issues in this matter be adjourned before Federal Magistrate Housego to 26 May 2008 at 10:00am.
Pursuant to Section 68L of the Family Law Act 1975, the children A born in 2004 and T born in 2007 be separately represented and the Legal Aid Commission of New South Wales provide that representation.
Each party make available to the Legal Aid Commission of New South Wales within 48 hours copies of all applications and affidavits filed by the party together with all existing orders and copies of any relevant reports.
The parties file and serve affidavits of all evidence upon which they intend to rely on the adjourned date by not later than 19 May 2008.
IT IS NOTED that publication of this judgment under the pseudonym Blair & Johnson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC735 OF 2008
| MR BLAIR |
Applicant
And
| MS JOHNSON |
Respondent
REASONS FOR JUDGMENT
Before me this morning are competing applications for parenting orders. The circumstances of the matter, from each party’s perspective, are dealt with in very detailed affidavits. The mother has relocated from Sydney to Toowoomba, I think, certainly Queensland in any event. That happened in January.
The orders that are being promoted by the father, his substantive application, is that orders be made requiring her to return either to Sydney or to Newcastle; in any event, to return to a location where there will be some practical prospect of his exercising what from his perspective is meaningful time with the children, substantial and significant time, but time which is meaningful in terms of the relationship that is able to resume in relation to the two children. I should note the ages of the children. One child is just over a year old, another child is about three and a half years of age.
It is clear that the substance of the mother’s opposition to those orders is a contention on her part that time spent between the father and the children poses an unacceptable risk of their being abused, or subject to abuse. I do not think I need to go into any detail about the matter at this stage, for reasons I will come to in a moment, but she makes much of what she says were behaviours of the father during the relationship, matters that she said she was partially aware of whilst the relationship was subsisting but some matters she only became aware of after the parties separated under the one roof and then separated physically. And the allegations include references to the husband being a member of certain internet sites, an allegation that he has a propensity for self-mutilation, and somewhat obliquely, for want of a better word, on the papers there is a suggestion that the children might even be at risk of directly abusive behaviour from him.
The matter is complicated by the fact that there are relatively recently concluded proceedings relating to another relationship the mother was in in which an allegation of sexual abuse was promoted by her against the father of that child. And the father in these proceedings played some role in those proceedings. He, at some stage, or at various stages, was the focus of some aspect of the allegations being promoted by the other side. So, the matter is complicated.
Certainly there is a tension between the position the mother adopted with respect to the father in these former proceedings and the position she adopts now but, ultimately, I am giving an outline of these areas of controversy because I just do not think it is expedient for me to embark upon what is clearly a very complicated dispute in relation to time spent. And the reason for that is that the parties are agreed that there should be an Independent Children’s Lawyer. There is an inevitability about the appointment in the circumstances of this case of an Independent Children’s Lawyer. The parties have recognised that and I have ascertained that we can allocate an interim hearing date about four or five weeks hence which will give the Independent Children’s Lawyer an opportunity to come on board and to provide an independent perspective in terms of what is in the best interests of these children.
I am conscious of the fact there has already been a delay in the proceedings coming before the Court in the sense that, and this is not necessarily any criticism of the father about this (I would need to know more about this in detail) but some time elapsed before he brought his application. There has then been a further period of time elapsed while the mother filed her answering documents and there is now going to be a subsequent adjournment. That is to be regretted.
The issues are significant issues. There has been a rupture in the relationship between the father and the children. One of the children is very young. The experience of the Court is that ruptures in the opportunity a parent has to interact with a young child, a child of his age, can be potentially significant, can have long-lasting impact. So, I am aware of all those matters. But ultimately the Court has to recognise that hearing time is limited.
It would not be appropriate to embark upon the sort of detailed hearing that would be required for me to apply the provisions of Part VII of the Family Law Act 1975 to the facts of this case today only for there to be another hearing when the Independent Children’s Lawyer came on board. That is simply not an appropriate use of the Court’s time. There should be an interim argument now or an argument on the next occasion and I think, clearly, the better alternative is to have a hearing where the Independent Children’s Lawyer is able to participate.
And assuaging my concerns in relation to the further adjournment of the proceedings is that the adjournment period is relatively brief. So, I do not think it is expedient to embark upon the full interim hearing today. For substantially similar reasons I do not think there is any utility in embarking upon an interim interim hearing because the same issue would still be front and centre in respect of that dispute; that is, the allegation being promoted by the mother of these children being at an unacceptable risk of abuse. It is a very serious set of allegations she makes and, even in respect of an order that would only be lasting for a short period of time, the forensic process involved would still be extensive. And balanced against the availability of a hearing date in the relatively near future I do not think it is expedient to embark upon that hearing either.
The interim hearing on that occasion will include an opportunity for the mother to promote any application for change of venue.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 8 May 2008
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