Harmer and James

[2009] FamCA 481

FAMILY COURT OF AUSTRALIA

HARMER & JAMES [2009] FamCA 481

FAMILY LAW – CHILDREN – order for time with suspended

Family Law Act 1975 (Cth)

APPLICANT: Ms Harmer

RESPONDENT: Mr James

INDEPENDENT CHILDREN’S LAWYER: Ms Olsen

FILE NUMBER: NCC 2893 of 2007

DATE DELIVERED: 9 April 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Loughnan JR

HEARING DATE: 9 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Winder Lawyers

SOLICITOR FOR THE RESPONDENT: Mark Evans

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Boyd Olsen Lawyers

Orders

IT IS ORDERED

1. The proceedings are adjourned to the Judicial Registrar's Duty List at 10:00 am on 3 June 2009.

2. That Order 4 of the orders of the Federal Magistrates Court of 20 June 2002 made in proceedings ZN 2222/02 be suspended until 6:00 pm on 3 June 2009.

3. For the avoidance of doubt the effect of that order is that the father will not spend time with the children L born … August 1995 and/or K born … August 1999 pursuant to these orders or at all until 6:00 pm on the adjourned date.

4. That the return date of 4 May 2009 be vacated.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2893 of 2007

MS HARMER

Applicant

And

MR JAMES

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to two children, L and K. They were born in August 1995 and August 1999 and are 13 and 9 years of age respectively.  Their mother and father are 39 and 40 years of age. They started to live together about 1994 and separated in 2001.

2. I think L and K are their only children.  The mother has a partner, his name is Mr G and they have a child J who was born in February 2009.

3. Some orders were made after proceedings in the Federal Magistrates Court on 20 June 2002 in terms agreed between the parties whereby the children would spend time with the father from 1 pm Saturday to 5 pm Sunday and from 3 pm Tuesday to 5 pm Wednesday, in each case extending to 6 pm in daylight saving time and half the school holidays. I gather that was in effect a shared parenting arrangement with the children otherwise with the mother.

4. The father was arrested and charged, on 9 January 2009 after damaging the mother's car and threatening to kill her. He was bailed to appear in May 2009 in relation to those proceedings. 

5. The father took the child from school on 5 February 2009.  An AVO was issued against him for the protection of the mother, her partner and the partner's son.  The matter came before the Federal Magistrates Court on 27 February 2009.  The orders of 20 June 2002 were left in place.  I think this was a recovery application that came back before the Court as he child had been returned.  The mother was to collect the child after school on 27 February and return the child to the father on Saturday 28 February.  A lawyer was appointed for the children, the Director-General was asked to intervene and the matter was transferred to the Family Court. It was ultimately listed on 6 March 2009 before a Registrar who ordered the parties attend for mediation or an intake assessment.

6. On 8 April 2009, the children and the mother attended upon the Family Consultant and there is a memo from the Director of Children's Services to say that the father arrived about three hours late for the appointment smelling of alcohol and apparently in the middle of his working day.  He was aggressive, offensive and hostile and tried to confront his 13 year old son.

7. The children both reported to the consultant that the father and his partner had been drunk and fought in front of them the previous evening.  The Family Consultant made a notification to the Department of Community Services.  The Family Consultant notes that the children are to, in accordance with the 2002 orders, to commence a week of holiday time with the father this coming Saturday.

8. L disclosed to the Family Consultant that the father had thrown him across a room, punched him and thrown things at him, including tent pegs.

9. There are affidavits by each of the parties.  I may have the dates wrong for this, but I think the evidence is that on 9 February 2009 the father heard that the child K hadn't been collected from school and he collected her and took her to the mother's home but the mother wasn't there. K told him this was the third time that week that she had not been collected. The father complains in his affidavit that the mother had moved three times over a recent period.

10. The mother has a different take on it.  She describes the incident on 9 January as a result of which the father has been charged. He arrived at 9.30 in the morning drunk and caused $13,000 worth of damage to her motor vehicle with a sledgehammer. In relation to her moving accommodation, she says the last move was caused by the conduct of the father.

11. It is a very worrying thing to have someone so out of control that he cannot behave in the confines of the Counselling section of the Court. That suggests a lack of control of incredible proportions. 

12. There is an application today.  The matter has been listed on the oral application of the solicitor for the mother to suspend the aspects of the orders of 20 March 2002 that would have the father spending time with the children.  The children are represented. Although Ms Olsen is here, she has only had 2 minutes notice really in relation to the matter. Similarly the father is in a bit of difficulty because his solicitor is here and he has only had a few short minutes to speak to the father by telephone before the appearance today. 

13. There have been allegations and counter allegations and there may be a scenario which puts some of this into a context. I must say the orders that were made by the Federal Magistrate earlier this year suggests there is a complicated story because the Federal Magistrate did not immediately suspend the orders after the incident involving the alleged smashing of the vehicle.

14. I appreciate there might be a complicated story but I have credible, independent evidence of one aspect. That is of the father attending upon the Court’s Counselling Section, late, in an aggressive, unpleasant and violent frame of mind, smelling of alcohol, being offensive to everybody there, being inappropriate to the older boy. Further the children made notifications to the consultants which would justify an interference in the normal arrangements for the children to spend time with the father.

15. The next step of this is with the father. He needs to put some material on. It is hard to see how we are going to move forward with expert evidence because I would strongly recommend to the Manager of Child Dispute Services that neither she nor any of her consultants put up with any behaviour by the father similar to that which he displayed yesterday.

16. This matter was to come back before this Court on 4 May 2009.  The proceedings, as I said, are before the Criminal Court later in May. I will vacate the May date and bring the matter back on 3 June. Until that date and time I will suspend the orders.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  5 June 2009