HARRIS & COATES

[2014] FamCA 79

FAMILY COURT OF AUSTRALIA

HARRIS & COATES [2014] FamCA 79

FAMILY LAW – CHILDREN – Interim Orders – with whom a child spends time - mother brought an Application in a Case seeking father’s time continue only on a supervised basis – father seeking unsupervised visits and an increase in time – best interest of the children – no orders made for supervision – no orders made for an increase in time spent with the children.

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: 7 February 2014

PLACE HEARD: Adelaide

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Ms Rieniets

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

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

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

Orders

Upon Noting:

1. both parties have undertaken not to discuss these proceedings with the children or in the presence of the children SAVE AND EXCEPT for the necessity to attend upon any further meetings or conferences arranged by the Independent Children’s Lawyer;

2. the matter remains listed for trial at 10.00 am week commencing 5 May 2014 before the Honourable Justice Dawe for five [5] days with a directions hearing before the Registrar on 22 April 2014 at 3.30 pm.

IT IS ORDERED THAT

1. The Contravention Application filed by the father on 5 February 2014 is dismissed and the listing date of 11 March 2014 is vacated.

2. The Orders of 11 September 2013 are continued in relation to the father spending time with the children each alternate Saturday from 9.00 am to 4.00 pm with handover currently taking place at Contact Centre C UPON NOTING that the handover location can be changed with the agreement of all parties in writing.

3. The father’s time with the children to be reinstated from Saturday 8 February 2014.

4. The Applications in a Case filed by the father on 5 December 2013 and the mother on 17 December 2013 are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris & Coates 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. The matter listed is an Application in a Case.  The parties are aware that the trial of the final proceedings has been listed by Registrar Paxton, with directions made for the trial to be heard before me on the five days commencing 5 May this year.  The orders I am making and the decision I am making need to be seen in that context. 

2. I also have on the file what purports to be an application for Contravention, filed by the father on 5 February 2014.  In discussions with the father this morning, he agrees that the Contravention application can be dismissed on the basis that the facts alleged which form the basis of the Contravention application will be matters which will form part of, and be determined at, the trial.  The Contravention application is dismissed and the listing of 11 March 2014 is set aside.

3. I turn to the question which is the most important this morning being the interim orders which will remain in place pending the determination of the final application. 

4. The Application in a Case filed by the mother on 17 December 2013 seeks to have the interim orders discharged and that the father’s time with the children continue only on a supervised basis on such times and dates as advised by the Contact Centre.  Counsel for the mother this morning suggests that that continue to be approximately two hours and can commence as soon as Contact Centre C makes that time available.

5. The father opposes that. He seeks that his time be continued unsupervised and, indeed, increased to the whole of the weekend, which he says would benefit the children because of the travel time involved and the limited time currently available.  My understanding is that the current orders which have been continued now for some time are the orders which were made on 11 September 2013, which provided for the children to spend time with the father each alternate Saturday from 9.00 am to 4.00 pm. 

6. Before the Court today are the affidavits of the mother, affidavits of the father and the affidavit of the Independent Children’s Lawyer, to which is annexed a significant letter from the Children’s Protection Service, which is dated 13 December 2013.  It is a letter addressed to Mr Seymour, the Independent Children's Lawyer and refers to telephone conversations with Ms K, of B Hospital Children’s Protection Service.  It also refers to information that they have received from the mother, being information that they have relied upon without any indication of contacting the father for his version. 

7. This matter is significant because there has been outstanding litigation for some time and is now listed for trial with directions being made in relation to the trial. 

8. I also have before the Court the Family Report of Mr P, which has been dealt with in submissions.  What is significant are the factors which relate to the best interests of the children and, in particular, the primary considerations which relate to, where appropriate, ensuring that the children have a meaningful relationship with both of their parents. The other significant and dominant factor is that the children be protected from abuse.

9. In this case, I am extremely concerned and join with the counsel for the Independent Children’s Lawyer in expressing my concern about the involvement of the children in the ongoing litigation between the parents.  It is clear from the CPS letter and from the father’s affidavit material and, indeed, the mother’s affidavit material, that all of the children are aware of the parents’ involvement in these proceedings and it would appear are not being protected from the emotional harm that comes about by involving the children far too much in the factors concerning the other parent.

10. I have made it clear to the father and the parties this morning that, notwithstanding that the affidavit of the father refers to an annexure which is a letter from J directed to me, I have not read that letter and would not receive that letter as evidence before me.  I consider that the children should not be involved in such a way.  It is clear that the proceedings have had a significant effect on the children. Indeed, the therapists have apparently discontinued their therapy with the children because of their concern about the children’s involvement in these proceedings.

11. It is not at all clear to me from the material that is before me whether there have been any therapist’s notes inspected by any party and if there was an objection to the therapist’s notes being inspected by any party following upon a subpoena being issued by this Court.  The normal process would have been to file the appropriate objection to the inspection of the material, which does not appear to have taken place thus far.

12. I return to consider what is in the best interests of the children on an interim basis.  The children of the parties in these proceedings are J who was born in August 2004, L who was born in June 2006 and M who was born in May 2008. 

13. The information before the Court thus far indicates that in the past there have been significant issues between the parents which have impacted upon the children.  There are also significant issues to be determined as to the cause of the children’s developmental, psychological or emotional difficulties and whether that relates to factors concerning the father’s behaviour, the mother’s behaviour or the behaviour of both of the parties.  Those matters cannot be determined until the evidence has all been tested.  There is a huge difference between the allegations made by the mother and the allegations made by the father and their opinions as to the basis of the difficulties the children are now experiencing.

14. The most recent (which appears to have brought about the mother suspending the time the father was to spend with the children, pursuant to the Court orders) was an incident in which the children returned to her care when the child L had a blood nose.  It appears from both the father’s evidence and the mother’s evidence that this blood nose arose as a result of L and M having a fight in the car on the way back to handover.  The mother blames the father’s behaviour for the altercation between L and M.  The father says it was behaviour that was not unusual and was simply a “tiff” which resulted in the injury.

15. The background to the altercation between these two young children is not a factor which I can establish on the papers before me.  I have to weigh up the concerns of both of the parties and take into account also the submissions of the Independent Children’s Lawyer, together with the significant letter from the Child Protection Service about the difficulties that arose. I also take into account the basis upon which that Child Protection Service letter to the Independent Children’s Lawyer was written.  It refers, in fact, to the therapy of J and comes to a conclusion at the end:

    Given that unsupervised contact has only recently commenced, CPS consider that it would be useful to further monitor the children’s response to contact with their father, to ensure that their psychological wellbeing is not compromised.

16. The difficulty I have in suspending the order made for the children to spend time with the father is the issue of the responsibility for the emotional and psychological abuse of the children, if there has been any, or whether that is significant enough to impact upon the obligation to ensure that the children continue to have a meaningful relationship with the father.  I accept that supervised time at a contact centre does not provide the same opportunity to continue a meaningful relationship, as unsupervised time in the terms of the order of September 2013 would provide for the father.  The handover place can be varied by any agreement between the parties and the Independent Children's Lawyer, which is reached in writing.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 7 February 2014.

Associate: 

Date:  18 February 2014