BOSTON & BOSTON

[2014] FamCA 413

FAMILY COURT OF AUSTRALIA

BOSTON & BOSTON [2014] FamCA 413

FAMILY LAW – CHILDREN – Interim Orders – father sought orders that child live with him and spend time with mother on alternate weekends – mother sought orders the child continue to live with her but spend limited time with the father – extremely poor relationship between the parties – father may face criminal proceedings arising out of allegations made by mother – eldest daughter may be witness in those proceedings – best interests of the child – concern for emotional and psychological welfare of the child due to involvement in proceedings – child to spend time with the father on each alternate weekend.

FAMILY LAW – CHILDREN – Interim Orders – previous orders provided the mother’s partner be restrained from coming into contact with the child – mother sought orders removing injunction – possible criminal proceedings – father alleges partner filmed the child in an inappropriate manner – best interests of the child – injunction be continued.

Family Law Act 1975 (Cth)

APPLICANT: Ms Boston

RESPONDENT:	Mr Boston
INDEPENDENT CHILDREN’S LAWYER:	Mr Croft

FILE NUMBER: ADC 1946 of 2012

DATE DELIVERED: 13 May 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 13 May 2014

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 INDEPENDENT CHILDREN’S LAWYER:	Mr Croft

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

Orders

1. The father spend each alternate weekend with the child R born on … 2002 commencing after school on Friday and concluding at the commencement of school on Monday or Tuesday if Monday is a Public Holiday such alternate weekend to commence on Friday 23 May 2014.

2. The matter is adjourned for a further First Day Directions hearing to Friday 13 June 2014 at 10.00 am before the Honourable Justice Dawe to prepare the matter for final hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Boston & Boston 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 1946 of 2012

Ms Boston

Applicant

And

Mr Boston

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. The Independent Children’s Lawyer has had very little opportunity to obtain information and produce evidence which would assist the Court in determining what is in the best interests of R, (“the child”).  Having heard both of the parents from the bar table and read the evidence which both of the parents produce, I am very much concerned for the emotional and psychological welfare of the child, no matter in whose care he resides and no matter what arrangements are made for him to spend time with the other parent.

2. What is clear from the affidavit material on file and the behaviour of the parties is that regrettably the child has been very much involved in the ongoing dispute between the parties.  It is for that reason that I have expressed my concern for his emotional and psychological wellbeing. 

3. The child was born in 2002 and is 11.  His parents have been litigating in the Federal Magistrates Court (as it then was) and now this Court for over two years.  It has been difficult in the past to determine what might be in the overall best interests of the child because of the extreme amount of dispute between the parties, the extreme allegations being made by the parties about each other and the relationships the parties have now entered into. 

4. In the past, taking into account the evidence that was presented on behalf of the father concerning the mother’s partner, Mr A, filming the child in an inappropriate way, the injunctions have been made to prevent the child having any contact with Mr A whilst a proper investigation has been made and whilst the overall evidence can be determined.  Today the mother is requesting that that injunction be discharged and that Mr A be allowed to have contact with the child.  The father opposes that and maintains that the child tells him that Mr A is often in his company, during the time that he resides with the mother, in breach of the existing injunction. 

5. There is also dispute as to the status and the future of the charges in relation to Mr A’s behaviour with the child and whether those charges are to be laid or continued. 

6. Another significant issue arises from the mother’s further involvement and that of the parties’ daughter, L (who will be 18 in a few days’ time).  The daughter has, with the knowledge of the mother, spoken to the police.  There is now a possibility or likelihood that charges will be made against the father in relation to rape and aggravated assault of the mother which occurred some years ago.  Those matters are obviously serious matters which will need to be determined on the facts in due course.

7. I have received evidence today, which is not disputed, from the father.  That evidence is, most recently as about 27 April 2014, Mr A sent an SMS to the husband’s telephone to which was attached a photograph (which is the exhibit which I have received).  The photograph is of the mother and Mr A kissing and apparently in bed at the time of the kissing.  The photograph and SMS being sent by the mother’s current partner to the father during the time that serious issues concerning the attitude of Mr A are to be determined is a matter which is taken into account and will, in due course, be the subject of determination when all of the facts can be considered. 

8. Notwithstanding the fact that the evidence has not yet been tested, I take that into account when assessing the need to continue the injunction which restrains the mother from allowing the child to come into contact with Mr A. 

9. Taking all of those matters into account and taking into account the ongoing serious allegations made by each of the parties against the other, I am satisfied that it is in the child’s best interest that the injunction concerning Mr A be continued. 

10. In relation to the issues concerning the overall arrangements made for the child, the father is proposing that the child come into his care on a full-time basis and spend alternate weekends with the mother.  The mother is proposing that the orders be such that the child continue in her care and have limited time with the father. 

11. I have taken into account the history of the matter and the fact that there have been arrangements in place for some time now, that the child live with the mother and spend time with the father.  The difficulty I have in relation to the matters which are presented by the father as a basis upon which there should be a change in arrangements are the concern I have about those matters being alleged and denied.  The Independent Children’s Lawyer has only just been appointed and has not been able, for obvious reasons, to present the case on behalf of the child to the Court. 

12. I am very much concerned about the inability of the parents to conduct themselves in a proper manner, and to carry out their duties and responsibilities as parents of the child.  That concern is brought about by the parties’ attitudes to each other, and the ongoing and sometimes public dispute that they have with each other sometimes in the presence of the child.  Who is more responsible than the other for that behaviour will, in due course, need to be determined after all the evidence has been heard.

13. The father is seeking permission to travel overseas with the child in June and July this year.  I take into account that the father has provided a reasonable amount of information and indicates that he will provide further information concerning the proposed travel.  However, there is the untested evidence as to the risk of the child not being returned and the form of guarantee which can be given to ensure the child being returned. 

14. Other significant factors which are to be brought into account are the ongoing, extremely poor relationship between the mother and the father, the lack of trust between the mother and the father and the poor relationship between the mother and the father’s fiancée who is to accompany him overseas.  I am concerned for the emotional and psychological welfare of the child being placed in the middle of all of this appalling behaviour and the risk that would be increased if he were to be permitted, against the wishes of the mother, to be taken overseas. 

15. In due course, when the Court has heard all of the evidence, then that will be a factor which needs to be brought into account.  If it transpires that the mother’s objections to the trip overseas are not based upon what would be in the best interests of the child, but on other factors, that will be a significant matter which is to be determined at a later stage.  If it transpires that there were risks of the child not being returned, then that would also be a matter which would be taken into account at a later time.  Currently, therefore I do not make the father’s orders set out in the father’s affidavit for the child to travel overseas.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 13 May 2014.

Associate: 

Date:  19 June 2014