Dawkins and Boreham

[2007] FamCA 296

FAMILY COURT OF AUSTRALIA

DAWKINS & BOREHAM [2007] FamCA 296

FAMILY LAW - CHILDREN - With whom a child spends time - Interim parenting orders - Allegations on each side - Best interests of a child during holding position pending expert reports being prepared - Review of a senior registrar's decision-de novo hearing.

Family Law Act 1975 (Cth)

APPLICANT: MS DAWKINS

RESPONDENT: MR BOREHAM

INDEPENDENT CHILDREN’S LAWYER: SUE ANNE MACGREGOR

FILE NUMBER: MLF 2611 of 2006

DATE DELIVERED: 8 MARCH 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 8 MARCH 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR SKERLJ

SOLICITOR FOR THE APPLICANT: MK STEELE & GIAMMARIO

COUNSEL FOR THE RESPONDENT: MR ROBINSON

SOLICITOR FOR THE RESPONDENT: RICHMOND & BENNISON

Orders

1. That paragraphs 1, 2 and 6 of the orders made 12 January 2007 are discharged.

2. That until further order, the father spend time with the child, a daughter born in October 2005 on each Thursday and Saturday from 10.00am until 4.00pm commencing on the first Thursday or Saturday after the Officer in Charge at B Centre in W confirms the arrangement can start.

3. That by 4.00pm on Tuesday 13 March 2007, each of the mother and the father complete all required forms and return them to B Centre at W to give effect to paragraph 2 of these orders AND IT IS REQUESTED that the said Officer in Charge arrange the necessary meeting with each party by no later than Saturday 17 March 2007. 

4. To give effect to paragraph 2 of these orders, the mother or her servants or agents deliver the child to the B Centre at the commencement of each period and collect the child from the Centre at the conclusion of the period.

5. That the parties institute a communication book which is to be delivered to the B Centre by the mother at the commencement of each period referred to and be returned to the said Centre by the father at the conclusion of the said period, such book to contain all details of:

   (a)any medical treatment of the child;

   (b)any illness of the child;

   (c)any dietary problems of the child.

6. That this matter forthwith be judge-managed by Justice Cronin and the parties have liberty to apply on short notice by letter to the Associate to Justice Cronin on any issue associated with:

   (a)these orders;

   (b)the future conduct of the proceedings;

   (c)the implementation of the recommendations of the two experts referred to in the orders made 12 January 2007; and

   (d)generally as to the increases and decreases of time between the father and the child pending final orders.

7. That all interim applications be otherwise dismissed.

8. That the Form 1 application filed 4 September 2006 and subsequently amended on 16 November 2006 and the response filed 26 September 2006 be referred to the Trial Notice List.

9. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2611  of 2006

MS DAWKINS

Applicant

And

MR BOREHAM

Respondent

REASONS FOR JUDGMENT

1. These are brief reasons as a result of orders that I have made today. 

2. This matter was the mother’s application by Form 2 to review the decision of Senior Registrar Fitzgibbon.  The Senior Registrar made orders after a contested interim hearing on 12 January 2007.

3. Mr Skerlj of Counsel appears on behalf of the mother, Mr Robinson of Counsel on behalf of the father and Ms Macgregor is the Independent Children’s Lawyer.

4. The mother’s application is based on a number of things but predominately issues that have arisen, she says, since the orders of the Senior Registrar.

5. The child was born in October 2005 and so is just 17 months of age.  There is no question in this case that she lives with her mother.  The mother is 36 years of age and engaged in home duties on a full-time basis.  She also cares for her child an older daughter who was born in October 1993 and who is 13 years of age.  This daughter suffers a serious neurological disorder and is wheelchair bound.  It seems common ground that the older daughter takes up a significant amount of the mother’s time.  The father is not the older daughter’s biological parent.

6. The father is 38 years of age and a tradesman who is self-employed.

7. The parties lived together for about five or six months, separating in January 2006.  They commenced these proceedings in September 2006.  As I pointed out during the hearing, I was shocked to see that there are over 42 documents already on the court file, much of which relates to affidavit evidence and as I shall shortly point out, much of it is repetitive.

8. Before turning to the specific issues raised by each party, there are two matters that need to be recorded as having been agreed.  The first is that the parties will attend upon a psychiatrist and a psychologist in May and June of this year at their expense.  The second is that although the father’s application was initially a week-about residence request of the child, I was not to examine in any detail the rebuttal of the presumption of equal shared parental responsibility on the basis that it was agreed that having regard to the nature of the background of the proceedings, it was inevitable that I would find that orders relating to equal shared parental responsibility should not be contemplated because of s 61DA(3). 

9. All parties appeared to understand that as a review application had been filed, I was to hear the matter on a de novo basis.  Accordingly, I have read all of the material filed by each party since September 2006.

10. The mother’s application filed 8 February 2007 sought that the father have time with the child every second Tuesday from 11.30am until 3.30pm, every second Saturday from 11.30am to 3.30pm and every second Wednesday from 11.30am to 3.30pm. 

11. There were also contentious applications relating to restrictions on the father consuming alcohol and driving a motor car.  The mother also sought an order that any of the time that the father was to spend with the child was to be supervised by an adult member of his family.

12. The mother finally sought orders in relation to alcohol testing.  In discussions with Mr Skerlj on behalf of the mother, I indicated that I was not prepared to make an order of that nature at this stage. 

13. The father responded by simply seeking that he have alternate weekends from 5.30pm Friday until 5.30pm on the following Sunday and each alternate Friday from 9.30am to 5.30pm. 

14. In discussions during the running of the matter, I indicated that I would not contemplate an overnight period of time at this stage until the reports to which I have referred above had all been completed by the parties.  There were a number of reasons for that including the fact that no similar period of time had been spent by the father until now and there were significant concerns expressed by the mother about alcohol abuse as well as aggression and violence.

15. The current position is that since October 2006, the father was to see the child for two hours on two occasions per week and that was increased on 28 November 2006 by one hour in each period.  Each of those times arose out of court orders but in each case, the parties had reached an agreement and consented to those orders.

16. The Senior Registrar heard the matter on 12 January 2007 at which time he had the assistance of an Independent Children’s Lawyer and the time was increased to six hours each Saturday and six hours each Tuesday.  For reasons that were not clear, the Senior Registrar decided to increase that six hours to eight hours from April 2007.

17. Subsequent to the hearing on 12 January 2007, the parties were before a State Magistrates Court during which, the mother sought an intervention order.  Initially she sought it on an ex parte basis at which time, the Magistrate was sufficiently concerned to suspend the father’s time pursuant to the Senior Registrar’s orders made on 12 January 2007.  For whatever reason, and I make no finding, the ex parte intervention order was discharged when the parties came before the same Magistrate on 1 March 2007.  It transpires that the father is disputing the basis for the intervention order and the matter is to be heard at the end of March.

18. Notwithstanding the removal of the magistrate’s restriction on the father’s seeing the child, the mother still did not provide her to enable him to spend time with the child. My understanding was that that refusal was based upon a written expression of concern by a paediatrician.  Although I am not at all clear on what the paediatrician’s view was, it seems that even the mother now concedes that the father should resume the relationship.  I have drawn that inference from the fact that the mother was consenting to orders of some nature this day. 

19. The Independent Children’s Lawyer’s position was that the amount of time ordered by Senior Registrar Fitzgibbon was appropriate.

20. As I expressed during the running of the matter, my dilemma is that the real time to be spent by the father with the child is a very subjective issue and that on the material I had, no particular period of time could be said to be right or wrong and hence, some time must be in the best interests of the child.

21. What is abundantly clear however is that the relationship between the parties is very poor. There are allegations of physical abuse and verbal abuse.  Each party makes allegations in their affidavit material about physical violence by the other.

22. I have expressed the view that I am not in a position to make any findings of fact in this case and I propose not to do so.  

23. The other matter that caused some consternation was the fact that the parties had been ordered to return to court in July after the two reports to which I have referred, had been completed.  I indicated having regard to the fact the parties had been before the court on a number of occasions, it was inappropriate for the matter to keep coming back. Under those circumstances, I have agreed to manage this case so that there will be no further hearing other than a final hearing unless the parties specifically approach my associate.  I have indicated to the parties that I will set out in the order specifically the basis upon which they can return to me and I have indicated that if there is an action taken which is vexatious or frivolous, there will not only be the problem of convincing me that there should be some orders made but there will be costs consequences.

24. Turning then finally to the outcome of these proceedings, it is important to note that the mother filed an affidavit on 16 October 2006 in which she expressed very clear concerns about intoxication of the father.  In addition she points to the fact that he has not only been intoxicated but driven a motor car whilst disqualified.  Apparently, he faces the County Court on an appeal in relation to a drink driving offence.  Her concern was that his intoxication leads to aggression and abuse.  In the affidavit, the mother set out a significant issue of concern that occurred in January 2006. 

25. The mother filed a second affidavit on 28 November 2006 in which she repeated her concerns about alcohol and aggression.  She said that the father admitted that he was not able to cope and that he could not remain calm or patient.  Obviously that would be not only a concern to the mother but also to a court dealing with the parenting orders for a very young child.  The mother’s difficulties are compounded by the fact that she faces significant physical challenges having the care of the elder daughter.

26. The mother filed a third affidavit on 19 December 2006 in which she expressed concern about the father’s lack of self control.

27. The mother filed a further affidavit on 8 February 2007 for the purposes of the review proceedings and again highlighted the alcoholism/alcohol abuse issue and the offences of drinking and driving.  The father admits that he has three court convictions for drinking and driving.

28. In paragraph 29 of her affidavit, she reported the father adopted a hostile and aggressive attitude towards her at changeover which upset both she and the child.

29. I am only able to draw inferences from some of these statements because they are broad and general. Particularly having regard to my responsibilities under s 60CC of the Act, I am not quite sure what conduct the mother was referring to.

30. In paragraph 31 of the last affidavit, the mother reasserts that the father continued to abuse alcohol and again the accusation was very general.

31. In paragraph 35 of the mother’s affidavit, she referred to “frequency of the disruption to” the routine of the child and that it “appeared” to be having a negative effect on both the health of the child and elder daughter.  The generalised assertion was of little assistance to me in determining what it was that affected the father’s proposal.  The closest I could glean was that in paragraph 37, the mother reported that the child was falling into a pattern of being stressed, irritable, tired, dehydrated and refusing food.  Two things need to be said about that.  The first is that I am not able to find that that is a direct result of the relationship between the father and the child and the second is that there must be a cut off point at which the number of hours spent by the father could alleviate those issues if in fact they are true.  Those are matters that are to be examined by the experts.

32. The mother filed a fifth affidavit on 6 March 2007 in which she repeated her concerns about the fluid intake of the child after the various contact sessions, the disruption to the child’s routine and the father’s conduct at the changeovers.  There is a specific reference in this affidavit to an incident on 9 February 2007 involving the grandparents which horrified me.  It was quite clear that objectivity had gone out of the window if these allegations are true.

33. The mother reported that on 13 February 2007, after returning the child in a pram, the father was seen putting the pram in his vehicle.  I was presumably to infer that he had been driving in breach of previous orders.  I was not prepared to make that finding having regard to his evidence of denials which was supported by corroborative material.  Under those circumstances, I was not prepared to say that the child was at risk in the father’s care. 

34. The same must be said of the breaches of the intervention order that are alleged by the mother.  These are matters that should be properly be dealt with by the State Magistrates Court.  My task is to decide which proposal best suits the needs of the child bearing in mind that I must contemplate her best interests.

35. I am concerned about the alcohol issue as well as the abuse but more about the care that is provided to the child.  I was not prepared to go beyond a limited period of time during which the relationship between the father and the child can be continued. I think the periods that I will order will enable the child to benefit from a relationship with the father. 

36. Various parties have filed affidavits in support but none was really of any significant help in determining which proposal of the two parties I should adopt.

37. Thus far, I have not made much reference to the father’s evidence.  He denied that he was constantly drunk, aggressive or violent.  He acknowledged that he was a drinker but described himself as a “social drinker” and denied that he was an alcoholic.  He did however admit that he had three charges of exceeding the prescribed concentration of alcohol in 1996, 2004 and 2005.  He claimed that he never drove the child when he had consumed alcohol and he made general counter allegations of violence against the mother. 

38. I was equally saddened to read the affidavit of Mr V.  He is the former partner of the mother and he deposed to the fact that the problem that the father was now encountering was something that he had encountered in the period post-his separation from the mother.  This evidence simply escalated the issue of the unhappiness of the mother and the father. It did not assist me in relation to the determination of what proposal should be structured to enable a meaningful relationship between the father and the child to be continued.  I want to make it clear that I have read the affidavits of Mr G, the father and his mother.  I have also read the two affidavits of Ms C and Mr C and taken all of those matters into account.

39. Having regard to the limited amount of time that the father has spent and the serious nature of the allegations that both parties have made, I am not prepared to go beyond a limited period of time at this stage.  I am concerned about the fact that much of the dispute between the parties occurs in the presence of the child when the handover occurs.  For that reasons, at my request, options were considered and the most sensible option was proposed by the Independent Children’s Lawyer after consultation with the B Centre.  That Centre will provide a handover facility and I propose to make orders accordingly.

40. It should be noted that these orders in fact mirror what the Senior Registrar did in January.  However I have not increased the time by a further two hours in April and propose not to do so.  I do that primarily because of the B Centre restrictions of available time but also I could not see any logical reason why a further two hours could be justified just because the child turns 18 months of age. 

41. I have considered all of the matters set out in s 60CC of the Family Law Act 1975 (Cth). I am concerned about the claims by the mother about the father’s parenting capacity.  The information that I have in the affidavit material is thin.  Against that, I am also concerned about the father’s claim that the mother is endeavouring to limit his role in the child’s life. These issues need to be examined by the experts and then comprehensive evidence considered.

42. For those reasons, I have decided to make orders that will settle the matter down until the experts have done their work after which, if there is a significant view expressed by the professionals that the time between father and child should be increased or decreased, I have given the parties the liberty to approach me directly to have the matter relisted for further consideration.  At that time, I will contemplate the matters based on affidavit material. 

43. I otherwise propose to dismiss the Form 2 application leaving only alive the substantive applications of each of the parties.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate:

Date: 04 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DAWKINS & BOREHAM