Dent and Dent

[2008] FamCA 976

FAMILY COURT OF AUSTRALIA

DENT & DENT [2008] FamCA 976

FAMILY LAW – CHILDREN – With whom a child spends time – Orders that the children not be exposed to the mother’s partner

APPLICANT: Ms Dent

RESPONDENT: Mr Dent

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 9797 of 2007

DATE DELIVERED: 27 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 27 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S.L. Johns

FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms C.J. Jenkins

Order

1. That the wife’s application filed 24 September 2008 shall be and is hereby dismissed.

2. That my reasons for judgment shall be transcribed and retained on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9797 of 2007

MS DENT

Applicant

And

MR DENT

Respondent

REASONS FOR JUDGMENT

1. This interim application is brought by the mother of these two little boys, J aged six and S aged nearly five.  They currently are living with their father, spending two days a week with their mother, pending a hearing once the case is reached in the trial notice list. 

2. The case came before the court on an interim hearing in early July this year, after the father had kept the children in his care.  Prior to that there was some sort of shared arrangement.  He said he kept the children because he became more and more concerned about the children in the mother's household.  He said the children had been reporting that they were very unhappy, and unhappy with inappropriate discipline by her partner, Mr M.  He was particularly concerned by an incident when he says the mother returned the children, but she was slurring and affected by something.  He was concerned that she had taken drugs.  She says that she had taken a mixture of prescription drugs, mistakenly, and she had fallen, hit her head, and was suffering from some sort of concussion. 

3. The upshot was that an Order was made on 3 July 2008.  Paragraph 8 provided that until further order the wife was restrained from permitting the children to be left alone with Mr M, her partner, and that pending the adjourned date of hearing, the children were not to have any form of contact with him, including that he was not to live at the home when they were in their mother’s care. 

4. The matter returned to court on 18 August.  By then there was the benefit of the appointment of an ICL, and subpoenaed materials.  Those materials related to criminal charges pending against Mr M.  The upshot on that day was that an order was made by consent that the previous Orders of 3 July were to be continued. 

5. The mother now says that she was pressured to consent to those Orders and her interim application today is to have that paragraph set aside.  Her alternative fall-back position is for an order that the children not be left alone with Mr M, that he be prohibited from disciplining them, and I think she would be prepared to agree that he undergo drug tests. 

6. The charges that Mr M currently faces, I am told in summary, include cultivating and possessing cannabis, possessing amphetamines, trafficking methylamphetamines, and trafficking a large commercial quantity of ecstasy.  Those drug charges apparently relate to a period in late 2005.  It seems he was charged in June 2006 and his County Court trial is due in the early part of 2009. 

7. The mother says that those charges relate to a period before he was involved with her and the children.  They relate to a period when he was living with someone who was involved with drugs.  It sounds as though he will be pleading not guilty to the charges - and I emphasise they are only charges at this point.  The way the case has been put to me is that 14 people have been involved.  Ten have already either stood trial or pleaded guilty.  Of those ten, something like seven have faced custodial sentences.  It is very hard for me to get a complete grip on these charges except to note that some, most particularly the trafficking large commercial quantities of ecstasy charge, appear to be at the serious end of the spectrum. 

8. The mother says that in all the period that Mr M was living with her and the children, being a year or so before everything changed in July of this year, he got on very well with the children.  She says the children were very fond of him, and are missing him, and she says that she never saw him involved in any way with any drugs.

9. The story though does not really end there.  In March of this year, Mr M was charged with another set of offences, involving stalking the mother's ex-boyfriend and also various threats, including threats to kill, and possession of various weapons.  Again these are only charges and I bear that in mind.  The trial in relation to those charges is due to be heard in the Magistrates' Court in March 2009.

10. The mother's position at this point is that it is important that Mr M be allowed to be involved at her place with the children.  Currently, he moves out each time the children are there and that that is an expensive and unsettling process.  She talks, as I said, about his glowing relationship with the children.  She says that the children really miss him.  She says that she is planning now to marry Mr M, and she is obviously fully supportive of him. 

11. The father’s point of view is one of natural concern.  He has not been privy to reading about the criminal charges.  Upon Mr M’s objection to the subpoenaed material being released to the parties, only the legal practitioners have seen it.  He is, to some extent, dependent upon the ICL's reaction to having read the material.  The ICL takes the view that Mr M should not be in contact with the children at this interim stage.  If I am against her on that, she would accede to him seeing the children on various conditions, but her primary position is that the current Order should remain.

12. The father feels strongly about that and he adds - albeit it is not on affidavit - that the children are happier and more settled since they have not seen Mr M, and there certainly has been a concern raised in the material about inappropriate discipline by Mr M.

13. These are very difficult cases for the court in that it is required to proceed on limited evidence.  That is particularly apparent when dealing with pending criminal charges where, I emphasise again, someone has been charged, but the charges are not at this stage proven.  People are innocent until proven guilty.

14. That said, there is no question that the paramount concern for me is the children's best interests.  That is what the Family Law Act dictates.  I propose taking what is the more conservative course for the children.  I propose retaining the Order in existence at this stage.  Early in the New Year, hopefully, the case will be getting ready to be heard.  The criminal charges should be resolved, and a final decision can be made, taking into account the current information.  But given the nature of these pending charges, I do not see that it is in the children's best interests at this stage for the Order to be changed, particularly in light of the seriousness, and what could be a prison sentence if the charges are found to be proven. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  27 October 2008