Harris and Harris (No 3)

[2016] FamCA 370

FAMILY COURT OF AUSTRALIA

HARRIS & HARRIS (NO 3) [2016] FamCA 370

FAMILY LAW – ORDERS – variation following contravention application – where both parties seek a variation – where the Court considers it appropriate to make the variation – where orders are made for telephone contact between the children and the mother – where orders are made for the mother to spend time with one of the children subject to that child’s wishes.

Family Law Act 1975 (Cth) s 60CC, 65DA
APPLICANT:	Ms Harris

RESPONDENT: Mr Harris

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of SA

FILE NUMBER: ADC 4951 of 2009

DATE DELIVERED: 13 May 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 13 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Harley

SOLICITOR FOR THE RESPONDENT: Dixon Gallasch Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Du Barry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

Upon Noting:

1. the Court has been notified that there are still four outstanding Contravention Applications filed by the mother, being filed on 14/4/15 (document 52);  11/6/15 (document 57);  28/9/15 (document  70);  and 26/10/15 (document 74);

2. by 4.00 pm on Friday 10 June 2016 the mother is to advise if she is proceeding with some or all of the Contravention Applications outstanding by sending an email to the Case Coordinator, the Independent Children’s Lawyer and the father’s solicitor and upon receipt of the information the Case Coordinator to refer the matter to the Docket Registrar with a view to fixing (if necessary) a hearing time in relation to the Contravention Applications being proceeded with UPON FURTHER NOTING if the Contravention Applications are not proceeded with the Docket Registrar can give consideration of a trial date for the final proceedings.

IT IS ORDERED THAT

1. The Court varies the order made on 22 January 2015 and continued by the order of 7 July 2015 such that:

   the time at which the mother is to telephone the children on Wednesday and Sunday of each week is at a time between 5.30 pm and 5.40 pm.

2. Further order that the father is to ensure that the mother is at all times provided with the correct mobile telephone number and ensure that the children and telephone number are available for the telephone communication in accordance with these orders.

3. The child J spend time with the mother and communicate with the mother in accordance with the orders subject to the wishes of the child J.

4. The existing orders are varied to provide for the three [3] children to spend time with the mother on Saturday 28 May 2016 in lieu of the time otherwise provided for the mother to spend time with the children on Saturday 21 May 2016 UPON NOTING there are orders in existence for the child J to spend time with the mother subject to his wishes.

5. The Contravention Application filed by the mother on 8 February 2016 is dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris & Harris (No 3) 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 4951 of 2009

Ms Harris

Applicant

And

Mr Harris

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have the submission made concerning any variation of the orders that should be made following my findings that there have been no contraventions by the father of the existing orders.  Those applications were the subject of hearing on the evidence recently.  I have delivered my reasons for making those findings, particularly in relation to the last dispute of alleged contravention.

2. The provisions of the Family Law Act 1975 (Cth) (“the Act”) allow the Court to vary the primary orders even when the contraventions have not been found to have occurred. When ordering any variation of the primary orders, the Court is required to take into account what is in the best interests of the children in accordance with the provisions of the Act and, notably, s 65DA and the provisions of s 60CC.

3. This is a matter where the orders to be varied are interim orders pending a final hearing of the matters which are in dispute between the parties in a litigation which has been ongoing for a considerable period of time and which have been transferred from the Federal Circuit Court to this Court recently. 

4. At an interlocutory or interim hearing, the Court is not able to assess all of the allegations made by the parties and determine who is, in fact, telling the truth and which facts will be used to form the basis of the considerations under s 60CC.  I do, however, in this case have the benefit of the evidence being tested to a certain extent in relation to some issues in the contravention proceedings.

5. In the material before the Court there is also now tendered the reports in relation to the family and community services and what is described as a case note where an allegation is referred to concerning the paternal grandfather. 

6. The proceedings before me in relation to the contravention also relate to the issues concerning the eldest child, J, who was born in 2004.

7. The orders which are currently in place, being 22 January 2015, provide for the three children, J, G and H, to live with the father and for the mother to have communication with them by telephone twice a week in specific days and times referred to in the orders save and except it is not specific when it says at approximately 5.30 pm.  The orders also provide for the mother to spend time with the children each alternate Saturday, such time to be in the presence of the maternal grandparents or either of them.

8. The orders that are now being sought today by the father have been set out in the memorandum provided to me.  The order that the mother seeks concerning the variation in relation to the orders which she seeks was that there be an order restraining the paternal grandfather to be in the presence of the children at any time. 

9. She provided the case notes from the Families SA as exhibit 1 and a reference to the allegations in the report provided concerning allegations made about the paternal grandfather in 1980. 

10. I have taken those matters into account.  However, the difficulty with those allegations is that reliable evidence has not been provided to form a basis even on this interim stage that the orders should be made, taking into account in particular the ongoing proceedings which have been before the Federal Circuit Court and this Court for a considerable period of time.  I therefore decline to make the order in relation to the paternal grandfather as sought by the mother.

11. The father is seeking orders that the mother be restrained and injunction be granted restraining her from following or photographing the father or the children and requesting or assisting any other person to do so.  This relates to the evidence that I heard concerning the alleged contravention by the father that he denigrated the mother in the presence of the children.  The evidence I heard certainly established and it was not denied that the mother and her friend were taking photographs at a public function.  It was, however, denied that they were specifically taken of the children. 

12. The photographs provided indicated that the father and the children were, from time to time, in those photographs.  However, the difficulty I have in making such a restraining order means that the mother would not be able to take photos of the children when they are legitimating spending time with her or allowing any other person to do so when they are spending time with her.  So the badly-phrased injunction is one that I do not consider should be made in the best interests of the children.

13. It is to be noted, however, that the mother is aware of the father’s concern and if inappropriate photos are taken by the mother or someone on her behalf between now and the final determination of these proceedings, then serious consideration will be given to making that sort of order, properly phrased, in the future.

14. In relation to the other orders sought by the father, he seeks that paragraph 4 of the order of Judge Kelly of 12 August 2015 be discharged.  By that order the father was restrained from contacting the maternal grandmother, save as may be necessary in relation to their role as supervisors. 

15. There was minimal relevant evidence that I have heard concerning the contact between the maternal grandmother and the father and any basis upon which the order should be varied.  The father is restrained from contacting the maternal grandmother.  That does not restrict the Independent Children’s Lawyer from contacting any relevant witness, nor does it restrict the father’s solicitors from requesting information from them.  If the mother takes steps to prevent her parents from cooperating with the Independent Children’s Lawyer or providing appropriate information to the father’s lawyers, that would be a material matter that is considered at the final determination of the matters which are in the best interests of these children should, as it appears unfortunately necessary, this matter proceed to a final hearing.  I therefore do not consider it to be in the best interests of the children for paragraph 4 to be discharged, as at the moment it protects the maternal grandmother from the father contacting her and causing more concern amongst the maternal family of the children.

16. The father also seeks that paragraphs 3 and 4 of the orders of Judge Kelly made on 22 January 2015, as extended by paragraph 3 of the orders of 7 July 2015, be discharged.  Paragraphs 3 and 4 of the orders of 22 January 2015 provide for the telephone communication between the children and the mother and paragraph 3 of the order of 7 July 2015, provided that paragraphs 2, 3, 4 and 5 of the orders of 22 January 2015 continue until further order.  So the orders that were made during the period of the adjournment on 22 January 2015 are continued.

17. The concern that is raised in relation to the telephone communication between the children is the difficulty which occurred as evidenced in the material I heard and the evidence I received during the contravention application that the mother, at least on one occasion, when the children did not respond to a telephone call from her, arranged for the police to attend upon the father’s home she having expressed concern as to their welfare.  In the circumstances of the evidence I have received in relation to the contravention that does not appear to have been events caused by the mother which took into account the best interests of the children.

18. However, to discharge the order in relation to the mother’s telephone contact because of that on an interim basis is not appropriate, and that the more appropriate alternative would be for a specific time for the call to be instigated and for the father to make the children available for that telephone contact to the father’s phone.  I assume that is to the father’s mobile phone, which he is required to keep the mother informed about. 

19. In relation to the other order that the father is seeking, he seeks an order that the mother be restrained and injunction is granted restraining her from being within 50 metres of the father or the children except at handovers of the children or when the children are spending time with her pursuant to the orders of the Court.  The difficulty with that order is 50 metres is quite close and that would require the mother being able to spot where the children were at a distance and then absenting herself.  I have also been assisted by being informed by the counsel for the Independent Children’s Lawyer that there already is in existence and continued by the orders of 7 July 2015.

20. Paragraph 10 restricts the mother until further order pending trial, the mother is restrained from attending within 100 metres of the child’s residence and attending at the children’s school or within 50 metres from the children’s school, save and except when she attends her appointments at disability services.  I consider that, taking into account the evidence that I have heard, those existing orders are sufficient to protect the best interests of the children. 

21. The Independent Children’s Lawyer Counsel assisted in relation to those matters and was not seeking any further orders pending the finalisation of the matter, save and except a clarification as to whether the time that J spends with the mother is subject to J’s wishes. 

22. I take into account the evidence which I heard in relation to the material concerning J in the contraventions and the indication in the affidavit material already on file that the parties were working on the basis that J’s wishes were significant. 

23. In order to prevent any further litigation as much as it is possible in this matter, I think it would be in the best interests of all of the children, and in particular J, for the order which was made providing for the mother to spend time with the child J and to communicate by telephone with the child J are both made subject to J’s wishes.

24. Otherwise that deals with all the contravention applications currently before the Court and the matter is currently already in the list of matters awaiting allocation of a trial date.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 13 May 2016.

Associate:

Date:  19 May 2016