Harris and Coates (No. 2)

[2013] FamCA 934

FAMILY COURT OF AUSTRALIA

HARRIS & COATES (NO. 2) [2013] FamCA 934

FAMILY LAW – CHILDREN – Interim Orders – with whom a child lives – with whom a child spends time – best interests – orders made continuing existing orders for the children to spend time with the father each alternate Saturday pending final determination of the matter.

Family Law Act 1975 (Cth)

APPLICANT: Mr Harris

RESPONDENT: Ms Coates

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of South Australia

FILE NUMBER: ADC 1718 of 2011

DATE DELIVERED: 29 November 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 29 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Rieniets

SOLICITOR FOR THE RESPONDENT: Denise M Rieniets & Associates Pty Ltd

COUNSEL FOR THE INDEPENENT CHILDREN’S LAWYER: Mr Hemsley

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of South Australia

Orders

1. The father comply with all of the Orders of 11 September 2013 being paragraph 3 and 5 such documents to be filed and served by 4.00 pm on Friday 10 January 2014.

2. Pending the determination of the trial in this matter the orders for the father to spend time with the children J born … August 2004, L born … June 2006 and M born … May 2008 on each alternate Saturday are continued.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris & Coates (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1718 of 2011

Mr Harris

Applicant

And

Ms Coates

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter which was before me on 11 September 2013 when certain orders were made adjourning the matter to this morning. 

2. On 11 September 2013, I considered interim orders that were to be made in relation to the children, J, L and M, who had been the subject of proceedings before this Court for a considerable period of time.  On that occasion, I ordered that the father spend time with the children each alternate Saturday from 9.00 am to 4.00 pm with certain conditions.  I adjourned the matter to this morning in order for further consideration of the interim orders and preparation of the matter for trial.

3. I made an order on 11 September 2013 that any affidavit upon which any party seeks to rely for the interim hearing is to be filed and served by 4.00 pm on 22 November 2013. 

4. The affidavit filed on behalf of the mother was filed on 22 November 2013. 

5. The Court has also received an affidavit, which was filed on 27 November 2013 by the Independent Children’s Lawyer, to which is annexed the letter from B Hospital Child Protection Service of 22 November 2013 concerning the treatment that the children have been receiving and, in particular, dealing with issues concerning the child, J.

6. The father has not filed any further material before the Court by way of any affidavit since the hearing in September but appears before me today and puts matters to me from the bar table, first of all indicating that he alleges that the children have had an enjoyable time with him and, in an aggressive voice, suggested that I also attend upon the time he spends with the children to see for myself how much they enjoy the time.  The husband is obviously unrepresented and is not aware that such an arrangement would be particularly inappropriate.

7. In relation to the other matters which were outstanding at the time, I also made an order at paragraph 5 of the order of 11 September 2013:

   …that if the parties were unable to resolve their financial matters by 22 November 2013, each of the parties are to file and serve the specific orders they are seeking in relation to financial matters and a one page summary identifying the grounds upon which those orders are sought.

8. Again, the father has failed to comply with the order that was made on 11 September 2013, so the Court does not have before it today the appropriate information which would enable me to make the appropriate directions to list the matter for trial.

9. I note that the matter is also listed for directions before Registrar Paxton on 28 January 2014, at which time appropriate directions could be made to prepare the matter for trial if by then the father has complied with orders of the Court.  If he has not by then complied with orders of the Court, then it would be an option to have the matter dealt with, both in relation to financial matters and children’s matters, on an undefended basis.

10. In relation to the children’s issues, the Court now has before it the lengthy detailed Family Report of 14 October 2013 and the letter from B Hospital, which is signed by the clinical co-ordinator of the Child Protection Services and the psychologist of the Child Protection Services who has been dealing with the children. 

11. The submissions I have received before me today from the mother and the Independent Children’s Lawyer are that the arrangements for the father to spend time with the children each alternate Saturday between 9.00 am and 4.00 pm should continue pending the trial.

12. The father seeks an extension of the interim orders on the basis that he has alternate weekends with the children.  The difficulty in determining what is in the best interests of these children in this interim basis is the considerable dispute as to what would be in the best interests of the children, the dispute concerning the capacity of the parents to encourage a meaningful relationship with each of the other parents and the need to protect the children from any harm including any psychological harm.

13. Bearing in mind the difficulties, the Court is therefore placing considerable reliance on an interim basis upon the Family Consultant’s report which recommends that the children continue to spend time with the father on alternate Saturdays from 9.00 am to 4.00 pm, and that further steps be taken in relation to consulting therapists and that, after a period of time, the fortnightly time be extended over a period of time. 

14. At this stage, therefore, taking into account also the material in the letter from the Children’s Protection Services and the background to this matter, I am not satisfied that at this interim stage it is in the best interest for the children to extend or alter the current arrangements for the children to spend time with the father.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 29 November 2013.

Associate: 

Date:  3 December 2013