Dawson and Arnott

[2009] FamCA 172

FAMILY COURT OF AUSTRALIA

DAWSON & ARNOTT [2009] FamCA 172

FAMILY LAW – CHILDREN – Interim parenting order – Time spent with the Father – Accusations of serious violence in front of the child during changeover – Contact suspended until Father can file material

APPLICANT: Ms Dawson

RESPONDENT: Mr Arnott

FILE NUMBER: BRF 1467 of 2005

DATE DELIVERED: 23 February 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 23 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr W J Tolton of Counsel appeared for the Applicant Mother

SOLICITORS FOR THE APPLICANT: Mugford Lawyers

COUNSEL FOR THE RESPONDENT: Ms A Frizelle of Counsel appeared for the Respondent Father

SOLICITORS FOR THE RESPONDENT: Affleck Lawton Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Emerson, Solicitor of Emerson Family Law appeared as the Independent Children’s Lawyer

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Father’s time with the child, B, born … December 2004 be suspended.

2. The Orders of this Honourable Court dated 26 November 2008 be suspended.

3. The Mother have sole parental responsibility for the child.

IT IS ORDERED THAT:

1. The proceedings be adjourned to case management review to 10.00 am on
   24 March 2009 at the Brisbane Registry of the Family Court of Australia.

2. Leave given to all parties to issue subpoenae by no later than 6 March 2009 and to be returnable on 20 March 2009.

3. The Father to file any material upon which he intends to rely by 4.00 pm on

   
   6 March 2009

   .

4. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF1467 of 2005

MS DAWSON

Applicant

And

MR ARNOTT

Respondent

REASONS FOR JUDGMENT

1. Orders were put in place in November 2007.  The parties had been trialling various plans for some time.  The matter was before me I believe in February and then once again in April.

2. The father has been spending time with this four year old boy supervised by his parents.  The mother has filed an affidavit sworn on 17 February and filed on 19 February.  It deposes to events on Sunday 15 February.  The father has been charged over those incidents with dangerous operation of a motor vehicle and with failing to remain at the scene of an incident.

3. He has not had the opportunity to file material.  Whether he wants to file material while there are pending criminal charges I do not know.  It may well be that the father has an explanation that the mother's partner was armed with some sort of a weapon and was standing in front of the vehicle.  Whether he says that he acted in a manner to protect himself I have no idea.  I suspect there may be a claim along those lines, but at the present time I regard the incident as serious.  I would have thought if convicted, with his prior history of violence, there would be a real risk the father would be sentenced to a significant sentence of imprisonment, but that is a matter for the State Courts, whether it is to be dealt with in the Magistrates Court or the District Court.

4. I have perused the statements of the mother and her partner and the photographs in the affidavit.  I am conscious of the recommendation made by the Independent Children's Lawyer.  Given the history of this matter I am concerned about this recent display of behaviour by the father.  It is not only the trauma that will be caused to a four year old to witness a serious incident such as this, it is also if there was to be continued time with attending a contact centre there must be a risk of a further incident of violence by the father towards the mother or her partner and whether that gets witnessed by the child is not to the point, parties do not need to live their lives in fear.

5. I proceed on the basis that the version given by the mother may be correct.  I do not know at this point in time, but if it is correct I would certainly view it very seriously.

6. I propose to adjourn this matter for one month.  I appreciate that may not be sufficient time to have the child assessed, but it will certainly give the father time to decide whether to file material and, if so, the nature of the material and it will give an opportunity for the Independent Children's Lawyer to issue subpoenas to obtain relevant material.

7. I propose to make an order that:

   ORDER DELIVERED

   If he does not do it that is the end of the matter.  I will not allow him to rely on such material.  It is a matter for him.  But at this stage the submissions made by the Independent Children's Lawyer supported by counsel for the mother I propose to suspend the operation of the orders of 26 November 2008.  In particular I suspend the father's time with the child pursuant to those orders.

8. I will make an order - all of these are interim orders to operate temporarily.

   ORDER DELIVERED

   RECORDED  :  NOT TRANSCRIBED

9. Return date 24 March.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  23 February 2009