Cameroon and Darcy (No 3)

[2009] FamCA 1333

FAMILY COURT OF AUSTRALIA

CAMEROON & DARCY (NO. 3) [2009] FamCA 1333

FAMILY LAW – CHILDREN – Delivery up of child to father – mother’s time with child suspended

Family Law Act 1975 (Cth)

APPLICANT: Mr Cameroon

RESPONDENT: Ms Darcy

INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

FILE NUMBER: ADC 928 of 2007

DATE DELIVERED: 8 December 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 8 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Charman

SOLICITOR FOR THE APPLICANT: Ian Charman & Associates

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boehm

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

Orders

1. That forthwith the mother deliver up to the father the child … born … July 1998, such delivery to be effected by the father attending the child minding service at this Court and the child leaving with him.

2. That the mother be restrained from attending the child minding service when the child is collected by the father today.

3. That any order providing for the child to spend time or live with the mother be suspended from today until 9:00am on 11 January 2010.

4. That further consideration of this matter be adjourned to 9:00am on 11 January 2010.

5. That forthwith the mother serve a sealed copy of the Notice of Child Abuse filed on 2 December 2009 upon the father’s solicitor and the Independent Children’s Lawyer.

6. That the Response filed by the mother on 8 December 2009 be dismissed and removed from the active pending cases list.

7. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 928 of 2007

MR CAMEROON

Applicant

And

MS DARCY

Respondent

EX TEMPORE REASONS

1. This matter was adjourned to today from 24 November 2009.  At that time I had before me an application filed by the father on 17 November 2009, and a response filed by the mother on 23 November 2009.  In the father's application of 17 November 2009, the father sought the mother deliver up the child to the father and that the child then live with father and that orders in favour of the mother spending time with the child be suspended until further order. That was his application before me on 24 November 2009.

2. With the application filed on 17 November 2009, that had come before me on that day and I made an order for the child to be delivered up forthwith and then adjourned the application to 24 November 2009 insofar as it sought suspension of the ongoing orders.

3. The mother filed a response on 23 November 2009 in which she sought that the father's time with the child be suspended and that the child returned to the mother's full‑time care.  No‑one had any opportunity to consider the mother's affidavit filed in support of that response, given the time frame, and I adjourned both the father's application and the mother's response to today.  In the meantime, the father was to consider filing an affidavit in response.  That has not happened, and I will come to why in a moment.  The Independent Children's Lawyer also wanted to follow up some issues raised by the mother in her affidavit.

4. The father has not filed a further affidavit because the mother has again failed to comply with orders of this court and failed to hand over the child on 27 November 2009.  At 6.30pm on that day the father attended at the Children's Contact Centre to collect the child in accordance with the current orders, but the child would not go with her father.  Thus the father has now filed a further application on 1 December 2009, which is before me today.  He seeks again, firstly, an order for delivery up of the child and then he seeks those further orders about ongoing issues that were in his application of 17 November 2009.  He wants the child to be returned to him, and the suspension of all orders in favour of the mother spending time with the child.

5. The child is with the mother still and to repeat the child has been brought to the childcare centre at this court today by the mother.  The mother has tendered today a response to the father’s latest application in which she seeks firstly that I allow a school teacher to give evidence as to conversations she has had with the child, and a mandatory report she has made to the Department of Families SA, and secondly, that the time with the father be suspended due to the child not wanting to return and feeling unsafe. There is a supporting affidavit tendered by the mother today.

6. Perhaps that is a convenient point to mention that one issue that the Independent Children's Lawyer was wanting to look at was what the situation was with the school. I am told from the bar table by Mr Boehm that his instructor has spoken to the principal of the relevant school about notifications made by that school to Families SA. He is unaware of any follow‑up by Families SA, but the general consensus is that there has been none. 

7. The mother complains, and has now for some time, that Families SA are not doing the right thing by her daughter and not following up notifications, and this is no exception.  Of course, that is her take on it.  The father and the Independent Children's Lawyer, I assume, have a different view as to why Families SA are not investigating matters, and it is also quite apparent to me why that would be the case from the history of this file.  This is a matter where the parties are in deep conflict in relation to the living arrangements of this child and in recent times the mother has attempted to use Families SA by making notifications or having the child speak to people to make notifications to Families SA in an attempt, in my view on the reading of the documents, to prevent the father having any time with the child and to prevent the child having a relationship with her father.  The mother says that the child does not want to be with the father, the father is abusive towards her and the child is not safe with the father. However, they are allegations which the mother has made on numerous occasions.  There is nothing new about that in any of the most recent affidavits, and particularly the affidavit today. 

8. The context of this is that the child is due to go overseas with her father on 12 December 2009 and return on 6 January 2010.  Then the child is due to go to the mother on 8 January 2010 and the mother plans to take the child to Melbourne for the balance of the school holidays.  The father suggests that the mother is attempting to prevent the child going overseas and enjoying an overseas holiday with her father, and it seems to me that that is what is happening here.

9. There is no issue, as far as I am concerned, that this child has to be delivered up to the father today immediately.  The child is in the court precincts and in the child‑care centre.  The mother cannot continue to flout orders of this court and she now has to suffer the consequences of doing so.  There is nothing new with the issues that she raises, and I see them as nothing more than an attempt to use and influence this child for her own purposes, without considering at all the interests and needs of this child. 

10. What this child needs is to be away from her mother, and her mother's influence, for a period of time, overseas with her father, so that she can enjoy her holidays, enjoy her time with him, without the constant pressure that her mother is putting on her.  Thus I have no hesitation in making an order for the delivery up of the child today.

11. The only issue for me then is what I do with the father's application in effect to suspend the current order beyond the time of the return from overseas.  I should say that the application for delivery up is supported by the independent children's lawyer.  In terms of the ongoing order, the Independent Children's Lawyer is not supportive of there being an open‑ended order suspending the time that the child spends with the mother.  I have indicated though that one option for me, and an attractive option, is to have this matter back before me on 11 January 2010.  I have ascertained from the mother that it is early in that week that the mother planned to go to Melbourne.  As I say, the child is due back on 6 January 2010 from overseas and was due to go to the mother on 8 January 2010.  I am entirely with the Independent Children's Lawyer in terms of not making an open‑ended order for suspension, and thus the only issue for me is whether I suspend the time up to 11 January 2010 or whether I allow the current arrangement to continue, which is child back to mother on 8 January 2010 and then before me on 11 January 2010.

12. The Independent Children's Lawyer now supports an order for suspension until 11 January 2010.  The father seeks that as his second alternative to an open‑ended order and, in my view, it is appropriate to do that in the circumstances.  This is the second time recently when the child has been deprived of the important role that her father has in her life and deprived of the time that she should spend with her father to gain the benefit of his input.  The mother has taken it upon herself to keep the child in breach of orders of this Court, and I want to readdress that situation on 11 January 2010. In the meantime, the child should remain solely with the father.  What happens on 11 January 2010 we will wait and see.  Thus that is what I propose to do.

I certify that the preceding 12 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 8 December 2009.

Associate