CALDWELL & BARNES

[2011] FamCA 154

FAMILY COURT OF AUSTRALIA

CALDWELL & BARNES [2011] FamCA 154

FAMILY LAW - CHILDREN – where the parties seek that previous interim orders made by consent remain as final orders – where the proceedings have a long history – best interests – where the Court is satisfied that it is appropriate for the interim orders to remain as final orders

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Caldwell

RESPONDENT: Mr Barnes

INDEPENDENT CHILDREN’S LAWYER: SRG Lawyers

FILE NUMBER: ADC 2855 of 2007

DATE DELIVERED: 3 March 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 3 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Childs
SOLICITOR FOR THE APPLICANT:	Susan Litchfield

COUNSEL FOR THE RESPONDENT:	Mrs Lindsay
SOLICITOR FOR THE RESPONDENT:	Almeida  & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Reynolds
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	SRG Lawyers

Orders

UPON NOTING that the Orders made in relation to the child H on 16 July 2010 and the additional Orders made in this Court on 7 December 2010 are treated by the parties and by the Court as final Orders of this Court
IT IS ORDERED THAT:-

1. All applications before the Court are dismissed and removed from the pending list.

2. The appointment of the Independent Children’s Lawyer is discharged.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2855  of 2007

Ms Caldwell

Applicant

And

Mr Barnes

Respondent

And

Mr Reynolds
Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The dispute in these proceedings is in relation to two of the children of the respective parties in these proceedings, those children being H born … February 1999 and who is hence 12 years of age  and T born … September 2002 and who is hence 8 ½ years of age.  The history of litigation for these children has been a long one.  Proceedings between the parties commenced many years ago but the Application before me presently is that which was filed by the mother on 31 March 2009.  The allegations made which brought this matter before the Family Court were to a concerning extent. 

2. The proceedings were initially filed in the Federal Magistrates Court but transferred to this Court’s Magellan Project on the basis of the numerous child protection concerns regarding the children, a history of Youth Court proceedings and serious allegations of abuse made by the mother against the father.   Numerous interim, interlocutory and indeed some final orders have been made over a lengthy period in these proceedings. 

3. The dispute in relation to H was finalised by the parties when I made final orders by consent on 16 July 2010.  I am informed today that the parties certainly do not wish to alter those orders and those orders are to remain as final orders in these proceedings with respect to H.  That meant that the outstanding issues remaining for the Court’s consideration are those which impact upon T.

4. T has been living with the father since January 2004 but the particular concerns for the mother, and also for the Court, was the fractured relationship that she enjoyed with T.  Certainly allegations have been raised in these proceedings to the effect that the father was inhibiting that contact between the mother and T and the Court’s attention for some time has been on trying to restore that relationship.  It required a good deal of consideration, care and attention by the parties, the Independent Children’s Lawyer and the Court, not the least of which that two Family Reports were prepared in this matter by Dr B.  I also required Dr B to give evidence before the Court on 16 July 2010. 

5. A number of orders have been made for the intervention of CAMHS in order to assist T with his behavioural difficulties and in order to try and overcome the obstacles in the mother’s relationship with T.  It was an imposition placed upon the father that he make such arrangements for CAMHS treatment.  He did undertake some activity in that regard but clearly has determined that it is no longer appropriate to do so or it is far too inconvenient.

6. As a consequence when the matter was last before the Court on 7 December 2010 I endeavoured to give that authority to the mother so that she could make her own arrangements.  However CAMHS have taken the view that they will arrange such counselling and therapy and only undertake such action with the consent of the legal guardian of the child and they will not do it on the basis of an order from the Family Court.  That is a regrettable outcome.  As a consequence, as I understand it, T is not receiving any CAMHS assistance.

7. The other problem, from the Court’s perspective, is the father’s refusal to undertake the “Kids Are First” parenting programme which has been recommended for a long time now.  The mother undertook the course and completed same and I am confident that she achieved some benefit from it.  It is my view that the father would have achieved benefit from it as well. 

8. However, the good news is that T is now regularly seeing his mother on alternate weekends.  It is the parties’ wish that the orders made on 7 December 2010 remain in force as final orders of this Court to complement the other final orders made on 16 July 2010.

9. In making these Orders I have considered not just the long history of the proceedings but necessarily the relevant provisions of the Family Law Act. The most relevant is, of course, Section 60CA which requires the Court to treat the interests of the children as the paramount consideration. In doing that, the Court is required to look to Section 60CC of the Act which is divided into “primary” and “additional” considerations.

10. In my view, these Orders agreed by the parties satisfy both of the primary considerations.  They achieve the best that can be achieved in the circumstances of this case, being the maintenance of a meaningful relationship between the children and the parties and they also serve as best they can to protect the children from harm. 

11. I have also had general regard to the extensive additional considerations set forth in Section 60CC(3).  I have had regard to each and every one of those matters that are relevant in these quite extensive proceedings.  In my view, it is not necessary for me to recite them seriatim and make individual findings under each heading.  I am satisfied that all relevant matters have been considered by the parties, by me and the Independent Children’s Lawyer and that these orders represent the best interests of these two children who, for a long time, have been locked into the very difficult and  bitter dispute between their parents.

I certify that the preceding eleven (11) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 3 March 2011.

Associate: 

Date: