Ethel and Dobbs (No 2)

[2011] FamCA 403

FAMILY COURT OF AUSTRALIA

ETHEL & DOBBS (NO 2) [2011] FamCA 403

FAMILY LAW - CHILDREN – interim orders – where it was intended that the matter would be progressed so that the father would have some unsupervised time with the child – where recent affidavit material raises concerns which need to be dealt with at trial – best interests – held that it was appropriate for the Court to maintain a stable and secure environment for the child pending determination of the issues – orders that the father’s time with the child continue to be supervised.

Family Law Act 1975 (Cth)

APPLICANT: Mr Ethel

RESPONDENT: Ms Dobbs

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 788 of 2009

DATE DELIVERED: 30 May 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 30 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Anthony
SOLICITOR FOR THE APPLICANT:	KPA Lawyers

COUNSEL FOR THE RESPONDENT:	Ms Lewis
SOLICITOR FOR THE RESPONDENT:	Norman Waterhouse Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Stephen
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission

Orders

1. The proceedings be listed for mention / directions and preparation for trial before the Magellan Registrar at 2.30 pm on Wednesday 22 June 2011.

2. Within twenty-eight [28] days of the date hereof the mother secure all of the necessary equipment to enable her to offer to the child L ETHEL (“L”) born … April 2006 the opportunity to communicate with the father by Skype and that thereafter, the mother do facilitate Skype communication between the father and L for a period of time between 5.30 pm and 6.00 pm (Adelaide time) on the Thursday of each week UPON NOTING that in the event that any expense is incurred by the mother in securing the necessary equipment or providing that facility to the father, then the costs of same are to be borne by the father.

AND BY CONSENT, IT IS ORDERED THAT:-

1. The father be at liberty to attend parent information nights or parent / teacher interviews at times when L is not present at the school and at times when the mother is not otherwise present at the school.

2. The mother secure an exercise book to be used as a communication book to be exchanged between the parties at each handover occasion UPON CONDITION that such communication book is to be used only for the purposes of relaying information between the parties which is directly relevant to L’s care and wellbeing.

AND IT IS FURTHER ORDERED, PENDING FINAL DETERMINATION OF THESE PROCEEDINGS OR FURTHER ORDER OF THIS COURT THAT:-

1. The father spend time with L from 10.00 am until 5.00 pm on each of Saturday 5 March 2011 and Sunday 6 March 2011 and for the same period calendar monthly thereafter, with all such time to be supervised by either the father’s mother Ms Z or the father’s daughter Ms M.

2. All handovers at the commencement and conclusion of each period of time the father spends with L be conducted inside the Police Station in W Street.

3. The father be restrained and an injunction is hereby granted restraining the father from:-

   (a)    consuming any illicit substances for a period of twelve [12] hours prior to any time that he is to spend with L and during any time that the father spends with L; and

   (b)    bathing L.

IT IS NOTED that publication of this judgment under the pseudonym Ethel & Dobbs (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 788 of 2009

Mr Ethel

Applicant

And

Ms Dobbs

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The matter before me today is the adjourned hearing in a long running dispute between the parties to these proceedings.    The dispute centres around L ETHEL (“L”) born in April 2006 and who has hence only just turned 5 years of age.  The matter was last before me on 21 February 2011 and I do not intend to repeat all of the matters that I said there, however I refer to those reasons in the determination that I make today.

2. It will be seen from those reasons that there are a large number of allegations that have arisen in these proceedings, a large number of interviews already of L and experiences of L, all of which will need to be the subject of trial proceedings in order for the Court to gain any confidence as to what orders might represent L’s best interests.

3. On the last occasion, having analysed all of the material that was before me to that time, I indicated it was my intention to progress the matter whereby the father spent more time with his daughter and on occasions for large parts of it unsupervised.  However, I did indicate that my intention was also subject to there being any evidence that suggested that it was entirely inappropriate to proceed in that manner.

4. Perhaps surprisingly from the father’s perspective, the material which has effected a change in mind in me and in convincing me that greater caution ought to be exercised leading up to the trial of the proceedings, is the material in the mother’s Affidavit filed on 25 May 2011.  One reading of that Affidavit could well suggest that the very matters about which I was concerned in respect of the mother’s presentation are emphasised in that Affidavit filed by her.  One of the issues for trial will be whether or not the father possesses or demonstrates the requisite parenting capacity in order to be a more fulsome carer of L.  The other possibility which has emerged from a number of the materials to date and which emerges again from this last Affidavit filed by the mother, is the possibility of considerable anxiety within the mother which also reflects on her parenting capacity.

5. There is the possibility that the mother is indeed hyper-vigilant and suffers a level of hyper-anxiety whenever L is to spend time with the father.    However as presently the mother is the most significant person in L’s life and presents as her primary carer, at least until the conclusion of the trial proceedings, in my view it is important to provide the safest and most secure environment for L and that includes particularly at an emotional level until all of these issues can be determined at the conclusion of evidence.  Thus as disappointing as it might be for the father, in my view, it is necessary to minimise the emotional impact upon L of the times that the father spends with her. 

6. Those emotional impacts may be totally unrelated in a direct sense to the time that the father spends with the child and may rather be more related to the mother’s inability to accept the father’s role in the child’s life.  As I said though, they are matters for trial.   It is for those reasons I err on the side of caution on behalf of this very young and very vulnerable child and simply continue the orders requiring supervision until the trial of these proceedings or until some further order made by this Court.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr delivered on 30 May 2011.

Associate: 

Date: