Dallas and Dallas

[2010] FamCA 104

FAMILY COURT OF AUSTRALIA

DALLAS & DALLAS [2010] FamCA 104

FAMILY LAW – CHILDREN – With whom a child lives

Family Law Act 1975 (Cth)

APPLICANT: Ms Dallas

RESPONDENT: Mr Dallas

FILE NUMBER: TVC 1301 of 2009

DATE DELIVERED: 5 February 2010

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: MUSHIN J

HEARING DATE: 5 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

Orders

IT IS ORDERED THAT

1. The orders by consent on 2 December 2003 remain in full force and effect.

2. The parties do all things reasonable to return the child K born … April 1998 to the care of the father in accordance with the said orders no later than 5:00pm on Sunday 7^th February 2010.

3. All applications be otherwise referred to the Registrar of the Townsville Registry of the Court for making all orders and directions that may be necessary to prepare competing applications for time spent by the said child with the mother to be heard at the April sittings of the Court in Townsville.

4. General liberty be reserved to both parties to apply on short notice.

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

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 1301  of 2009

MS DALLAS

Applicant

And

MR DALLAS

Respondent

REASONS FOR JUDGMENT

1. The present application is made by the mother and essentially seeks that one child of the parties, K, move from living with his father to living with her. 

2. The mother was born in 1963 and the father was born in 1960.  They married in April 1982 and separated in 2002.  They have three children by their relationship.  They are C born in October 1990, A born in May 1992 and K born in April 1998.  There is also an older child, M who is not of their relationship but nevertheless relevant to these proceedings.

3. On 2 December 2003 the parties, who included an ICL, consented to orders pursuant to which all three children lived with the father.

4. The mother lives in the Townsville area and the father lives further north in L.  The two older the children, A and C, have moved in relatively recent times to live with their mother in Townsville.  K has remained living with his father for most, if not all, of the period since the parties’ separation and has had regular contact with his mother as have the others at times which are specified in the orders by consent to which I have referred.

5. Pursuant to those orders, K came to Townsville to spend time with his mother over the recently finished school holidays and has not returned.  He has remained living with his mother in Townsville and has been enrolled and has started attending at a school here, rather than the school that he has been attending in L.  The mother, by her present application, seeks an order that K live with her on a full-time basis and further seeks specific orders with respect to the time which K is to spend with his father.

6. In response, by application filed on 1 February 2010, the father seeks that K return to live with him in L and that the mother have contact with him at specified times.  In particular, the father seeks make up time to compensate him for the fact that K had not been returned to him pursuant to the orders over the December/January holidays just finished. 

7. In support of her application, the mother has sworn an affidavit alleging significant instances of violence perpetrated by the father initially against her, and also in respect of his now partner, Ms S, with whom he has been in a relationship for some time.  For example, the mother alleges that the father:

   Broke a beer bottle on the side of the pool table and then held the broken bottle at [Ms S’s] throat, threatened to kill her.  My children, [C], [A] and [K] said they ran into their room and locked their door for fear of their safety.

8. It is alleged that Ms S pushed A down a flight of stairs and that the father had put the mother on life support when K was six weeks old.  She alleges that the father bashed her while she was pregnant with K and told her -

   To get rid of it.  [K], unborn because he, [K], would be born spastic.

9. There are other instances of alleged abuse by the father, particularly as reported by the children, C and A and also K to the mother, which are essentially uncorroborated.

10. In support of her case the mother has filed an affidavit by the child, A, which states in its entirety:

    1.I would like [K] to live with my mother, [C] and I will be going with my mother.  [C] and I will be going to university in Townsville which we, his older brothers will be living at our mother’s house.  [K] should be with the majority of his family.

    2.[K] will get more parental assistance in his school work if he was to live at our mother’s house.  [C], our mother and I will be able to look after [K] and help him with his school work.

    3.I don’t want to take the risk of my youngest brother being physically or verbally abused by my father’s partner, [Ms S].  I have bad experiences with [Ms S] as a child when being left at home by myself with her.  I’m trying to prevent the chance of abuse from happening by getting my brother [K] to live with us in Townsville.

11. In my interpretation the great bulk, if not the entirety, of the allegations made which I have set out above, are in respect of times prior to the making of the consent orders to which I have referred.  Of course, more recently C and A have been in the father’s household and have had some relationship with Ms S.

12. In his affidavit in response the father has denied the mother’s allegations.  He also annexes what he claims are the verbatim quotes of a number of text messages allegedly sent to him by the mother.  The mother denies that she has sent these messages and it is open for both parties to contest those facts at some later time.  However, it is appropriate for me to say that if in fact the mother has sent these messages she opens herself up to a very high level of criticism.  The messages, as alleged by the father, are disgraceful.  They are threats of very serious violence and may well be regarded as being racist as well. 

13. Because of the factual dispute and the urgency of this matter, I ordered, when this matter first came before me last Monday, that there be a brief report prepared by a family consultant of this registry.  The report was prepared by Ms D who is a senior family consultant in this registry.  It is dated yesterday and follows interviews both in person and by phone, conducted on Monday, Wednesday and Thursday of this week.  To the extent that the mother has criticised Ms D for not including the children, C and A in those interviews, I find that that criticism has not been made out.

14. In the report, Ms D started by relating the background to the dispute and in particular, referred to a previous family report in April 2003 which recommended that the children live with their father and spend time with their mother, such time being initially supervised.  The reporter in that instance found that:

    The relationship between the parents has broken completely with no residual capacity for trust or co-parenting abilities being evident.

15. I should note at this stage that Ms S, to whom I have referred, partnered with the father in approximately 1998.  She has two daughters from a previous relationship, aged respectively 22 years and 17 years, and the father and Ms S have a child, N, born in January 2001 who therefore turned nine years of age last week.

16. Ms D then outlined the current parenting arrangements and the present applications.  She referred to her interview with the mother and then her interview with the father.  She briefly interviewed Ms S by phone.  However, it is the question of K’s relationships which are of most importance.  Ms D wrote that K -

    Presented as thoughtful and sensitive child.  He engaged well with the report writer.

17. Quite rightly, Ms D emphasised to K that he was not required to make a choice and he did not in fact do so.  He spoke about -

    … his home life in [L] in positive terms.  He reported that he enjoyed school, sport and playing with his friends.  He described a close relationship with his father and saw his father as caring and supportive.  He also described a close relationship with each of his brothers and with his sister, [N].  [K] said Ms [S’s] daughters, […]; were both good to him.  With regard to Ms [S], [K] was reluctant to describe any positive attributes.  Similarly, he was reluctant to discuss the time he spent with Ms [S’s] extended family.  However information from Ms [S] and [the father] would indicate that [K] does enjoy spending time with Ms [S’s] extended family.

18. Ms D stated:

    Given [the mother’s] ongoing denigration of Ms [S], it is not surprising that [K] is careful about expressing positive feelings about Ms [S].  At the same time both Ms [S] and [the father] agree that because [K] has been unable to spend significant time with his mother, this has sometimes made him sad and he has then become resentful towards Ms [S].  When asked how he’d enjoyed spending time with is mother over the Christmas holidays, [K] stated his mother called him “her baby” because he was the youngest child.  He reported that his mother took him on lots of outings such as swimming, playing in the park and bike riding.  [K] had clearly enjoyed the special time he had had with his mother.  [K] expressed to the report writer that he would like to spend more time with his mother in the future.

19. With respect to her evaluation, Ms D reported in part:

    [K] has been raised in [L] and he has friends and family there.  He reported a very good relationship with his father and clearly has a strong attachment to him. [K] also has a close relationship with [N]. [K] was less forthcoming about any positives in his relationship with Ms [S], however the report writer believes [K’s] loyalty to his mother may have contributed to this.

    The report writer has serious concerns regarding [the mother’s] capacity to parent [K] full-time, based on the extensive history in the court file.  At the time the orders were made in 2003 the court considered [the mother] was not sufficiently capable as a parent for the children to live with her and indeed, for a period of time she was required to spend supervised time only with the children.

    The report writer also has concerns that [the mother] would struggle to promote [K’s] relationship with his father and sister.  [The mother] raised with the report writer very serious allegations of past family violence.  These allegations have never been substantiated and were, at any rate, dealt with in past court hearings.

20. Essentially, Ms D’s expressed the view that the status quo in favour of the father over many, many years does not constitute a risk to him, at least one which cannot be overcome by more time to be spent with his mother, which is recommended.  I am not satisfied that in all the circumstances such a risk exists.  In my view, there is not even a prima facie case made out by the mother for that proposition.

21. It is clear that K’s best interests is the paramount consideration. I am satisfied that the requirements of section 60B of the Family Law Act 1975 will be observed by whatever orders for ongoing contact I might decide.  Further, I am satisfied that the status quo in his report, in favour of the father, is in K’s best interests.

22. There is no issue of parental responsibility and there is no issue that the parties should equally share the time with K.  In particular, that is completely impracticable given the distance between the parties.  In those circumstances, particularly given that I do not see any risk to K being returned and there is a long status quo which is positive, I will order that K be forthwith returned to the care of his father in accordance with the present orders of the Court.

23. With regard to any matter of ongoing contact, I will refer the competing applications to the Registrar of the Townsville Registry for making orders and directions to prepare that issue for trial.  I will be returning to Townsville to sit in April of this year and will hear the matter at that time.

24. In particular, the question of whether there should be any amendment to the orders for K to spend time and communicate with his mother and brothers will be considered then.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Justice Mushin

Associate: 

Date:  18 February 2010