Carrington and Gunby

[2012] FamCA 920

FAMILY COURT OF AUSTRALIA

CARRINGTON & GUNBY [2012] FamCA 920

FAMILY LAW – CHILDREN – interim orders – where previous final consent orders provided for the child to spend regular time with the father – where the mother alleges that the father has physically abused the child – where the father alleges that the child has been emotionally and psychologically abused by the mother – best interests – orders that the previous consent orders continue pending final determination of the matter.

Family Law Act 1975 (Cth)

APPLICANT: Mr Carringtom

RESPONDENT: Ms Gunby

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 4119 of 2008

DATE DELIVERED: 31 October 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 31 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Read

SOLICITOR FOR THE RESPONDENT: Swan Family Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Hemsley

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

1. All interim Case Applications are dismissed.

1. Pending the final determination of the matter the Consent Orders dated 12 October 2009 as varied by Federal Magistrate Cole on 17 August 2012 are continued UPON NOTING the resumption on the next period the father is to spend time with the child B is to recommence on Friday 2 November 2012 at 6.00 pm.

1. The final application proceedings be referred to the list of matters awaiting trial allocation and are adjourned for trial directions before the Docket Registrar on a date to be advised by the Court UPON NOTING THAT the parties currently estimate the length of trial to be five [5] days and UPON FURTHER NOTING the matter is in the Magellan List.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carrington & Gunby 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 4119 of 2008

LUKE ADAM CARRINGTON

Applicant

And

LAURA ELIZABETH GUNBY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. In relation to the interim applications, I have before me a matter in which there are serious allegations in relation to the welfare of the child.  Significantly the mother alleges that the father has been responsible for physical abuse of the child.  The father alleges that the mother has been responsible for emotional and psychological abuse of the child by preventing the child continuing in a relationship with him.

2. The matter has a significant history, even though the child B was born in June 2008 and is therefore only aged four.  Proceedings in this Court appear to have commenced in 2008.  There are already in excess of 90 documents on the Court file.

3. In 2009, there was a significant Consent Order made, which provided for the child the child to live with the mother and spend time with the father.  The Consent Order provided for there to be increasing time, such that when the child turned four, his time with the father would be each alternate week from Tuesday 10.00 am until Wednesday 6.00 pm and on the intervening week, from Saturday 10.00 am until Sunday at 6.00 pm continuing thereafter, each alternate week from Tuesday 10.00 am until Wednesday 6.00 pm and on the intervening week, from Friday 6.00 pm until Sunday 6.00 pm and at such other times as may be agreed between the parties. 

4. The Consent Order also had specific other conditions, directed the parties to attend a Parenting Course approved by Families SA and certain injunctions restraining the parties from actions which could be construed as not in the child’s best interests, such as denigrating the other parent in the presence of the child.

5. Following those Consent Orders made in 2009, there have been further proceedings.  The matter came on in the Federal Magistrates Court before Federal Magistrate Cole, who dealt with the allegations that were then made, including allegations by the mother that the father had physically abused the child. 

6. When the matter was before Federal Magistrate Cole, the orders of 17 August 2012 provided for the time that the father was to spend with the child to resume on 24 August 2012 and both parties were ordered to forthwith enrol and complete the Kids Are First Post-Parenting Program.

7. Both parties, without admission, were restrained and an injunction was granted restraining each of them from physically disciplining the child.  An order was made pursuant to section 69ZW, requesting the Department of Education and Child Development of Families SA to provide documents and information to the Court concerning the child.  That report has been received. 

8. My understanding is that notwithstanding that order, the child has not spent time with the father since June of this year. 

9. The father has also filed contravention proceedings, which are listed for determination before me in early February.

10. This morning, the Court is faced with the need to balance the serious matters concerning the best interests of the child namely, the need to protect the child from harm and the need to ensure that the child has a meaningful relationship with both parents. 

11. In relation to the allegations of physical harm, at this stage, the Court takes into account the history of the matter and the report from Families SA, together with the affidavit of the mother, which needs to be considered in terms of the history of the matter and the age of the child.  The father has attended the Kids Are First program, I am told from the bar table.  I am also told from the bar table that the mother has not.

12. Considering all of the matters and taking into account that the paramount consideration is the best interests of the child, I am not satisfied that it is appropriate to grant the mother’s oral application to suspend the orders of the Court which provide for the child to spend regular time with the father.  The Court therefore considers that the Consent Orders and the orders of Federal Magistrate Cole should continue, pending a final determination of the matters alleged by both parties. 

13. In that regard, the father is seeking a final order and an order on the interim basis that the child the child live with him, asserting, as he does, the mother has caused harm to the child by failing to comply with the Court orders and cannot be trusted.  He puts it to the Court that she cannot be trusted to comply with the Court orders in the future.  However, on balance, I am satisfied that the orders which are now in place should continue pending the trial.  I therefore dismiss the interim applications, leaving in place the Consent Orders of 2009 as varied by Federal Magistrate Cole in August of this year.

14. The final proceedings of the matter are referred to the list of matters awaiting trial allocation.  I adjourn the matter for trial directions before the Docket Registrar on a date to be advised by the Court, upon noting that the parties currently estimate the length of the trial to be no more than five days and it should be noted that it is a Magellan matter.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 31 October 2012.

Associate: 

Date:  8 November 2012