HILLMAN & LINDBERG

[2012] FamCA 451

FAMILY COURT OF AUSTRALIA

HILLMAN & LINDBERG [2012] FamCA 451

FAMILY LAW - CHILDREN – interim orders – whether previous parenting orders providing that the child spend time with the mother on alternate weekends should be continued – where the father seeks orders that the child’s time with the mother be subject to the child’s wishes – where the mother seeks the continuation of previous orders – best interests – where the Court was not satisfied that it was appropriate to make an interim order that the child not spend any time with the mother – orders for the continuation of previous orders.

FAMILY LAW - ORDERS – where the father seeks orders granting the South Australia Police the discretion to vary Court orders – where the Court held that police officers do not have such discretion nor does the Court have the power to grant the police with such discretion.

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Hillman

RESPONDENT: Ms Lindberg

FILE NUMBER: ADC 1221 of 2007

DATE DELIVERED: 5 June 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 5 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: n/a

COUNSEL FOR THE RESPONDENT: Mr Freer

SOLICITOR FOR THE RESPONDENT: Jaak Oks Lawyers

Orders

1. Paragraph 2 of the interim procedural orders of the father’s Initiating Application filed on 6 February 2012 is dismissed.

1. Pending the final distribution of the proceedings and orders sought by the father that the orders of Federal Magistrate Lindsay dated 13 September 2010 continue in force UPON NOTING the alternate weekend for D is to recommence on Friday 8 June 2012.

1. The time is extended for the mother to file and serve her response to the Initiating Application provided that such response is filed and served within 14 days from today.

1. The listing date of 21 June 2012 at 9.15 am before the Honourable Justice Dawe is vacated.

1. The matter is referred to the Registrar to prepare the matter for a final trial (if such final trial is necessary after the Family Consultant has prepared the assessment).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hillman & Lindberg 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 1221 of 2007

Mr Hillman

Applicant

And

Ms Lindberg

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the hearing of interim matters in relation to the children of the parties D who was born in December 1998 and B who was born in August 2003. 

2. The interim applications which are before me today are the interim orders sought by the father in the Initiating Application filed by him on 6 February 2012.  He seeks orders:

   (1)Allowing [D] ([…]/12/1998) to have discretion on “spends time with” mother;

   (2)Order to allow SA Police to have input in “spends time with” directions/parenting orders;

   (3)Order for child [B] to be treated by doctor for illness and attend an Ennuresis (sic) Clinic at Women’s and Children’s;

   (4)Restraint and injunction for stepfather, [Mr Lindberg] interfering in parenting matters between mother and father, threatening or preventing communication between parties; 

   (5)      That this application be heard urgently.

3. The other applications before the Court are the Applications in a Case filed by the mother, both of which are similar.  The one that is now relied upon is the one filed on 30 March 2012 in which the mother seeks orders:

   (1)That existing Parenting orders dated 13th September 2010 in relation to the children [T] born […] June 1993 and [F] born […] August 2003 remain in place;

   (I think there is an error in relation to that order sought, but I will continue with the orders that are actually before the Court);

   (2)Parenting Orders in the Parenting Orders dated 13^th September 2010 relating to overnight contact between [D] born […] December 1998 and the Mother, [MS LINDBERG] be suspended for a period of not more than eight weeks (8 weeks). This suspension is requested due to a short term health issue of the Mother, [MS LINDBERG]. Attached herewith is a (sic) an Affidavit of [MS LINDBERG];

   (3)In place of overnight contact it is requested that during the period of suspension, daytime visitation be allowed on the Sunday of a weekend that would have normally involved overnight contact with the Mother. Handovers are to occur at […] Police Station at 12 AM on a Sunday [D] to be returned to the Father at the […] Police Station on the Sunday Afternoon at a time agreed to by the Parties but no later than 5 PM;

   (4)These Orders apply from a date as directed by this Honourable Court but no later than 6^th April 2012.

4. There is reference to handovers and that this matter be heard by the Court “but no later than 6 April 2012 as an urgent matter”.

5. In support of those applications I have the affidavits of the mother and affidavits of the father. 

6. When the applications were before Registrar Paxton on 22 May 2012, the father was unrepresented but was present and Mr Freer appeared for the respondent mother.  Orders that were made on that occasion were typed and sealed and distributed to the parties’ address for service including the ongoing residential address of the unrepresented father at S Street, Suburb P.

7. Those orders quite clearly say that the mother’s Applications in a Case filed on 21 March 2012 and 30 March 2012 respectively, and the father’s application for interim orders filed on 6 February 2012 be listed for interim argument “before Dawe J on 5 June 2012 at 2.15 pm”.  There were other specific orders made on that occasion, including a direction for the mother to file and serve a response to the Initiating Application within seven days and for the parties to attend an intake event for a meeting with the Family Consultant and preparation of a Children and Parent Issues Assessment Report.

8. Notwithstanding the specific orders made by Registrar Paxton on 22 May 2012 and the fact that those sealed orders were distributed to the parties, the father did not appear in Court at 2.15 pm this afternoon.  Attempts were made to ascertain the whereabouts of the father and arrangements to be made for him to attend.  Finally, at the instigation of the Court Officer, the father was contacted by telephone and arrangements made for him to appear by telephone before me this afternoon. 

9. I have since then heard submissions from both the unrepresented father and counsel for the mother about the orders that they seek and the basis upon which those orders are sought.

10. It has been made clear to me by counsel for the mother, that the mother is not now seeking the specific orders to suspend the orders in relation to her spending overnight time with the child D, because the relevant period of time has passed, pursuant to which she was seeking suspension of the orders based upon the doctors report which is annexed to her affidavit (indicating that she was suffering from a stress disorder brought about as a result of the conflict with her daughter and that such period of eight weeks would “de-escalate the conflict” and the stress that was being caused to the mother).

11. The mother is now seeking confirmation that the final orders of the Federal Magistrates Court made on 13 September 2010 are to continue to apply.  Otherwise she is opposing the orders being sought by the father. 

12. The father’s submissions before me today indicate that he is not now seeking the specific orders by way of interim orders in relation to the child B.  He is continuing to seek an order that D have a discretion as to when she spends time with the mother and for orders which would allow the South Australian Police to exercise some form of discretion, as I understand it, or to have some form of what the father calls input into the “spend time” with directions/parenting orders.

13. The father has correctly been told by the police that they do not have the capacity to vary or amend Court orders.  This is the Family Court of Australia.  It is a superior Court of record which has authority throughout Australia (save and except for Western Australia which has its own Family Court).  The orders of this Court are to be obeyed by the parties.  Police officers as such, do not have the discretion, nor do they have the capacity to exercise any discretion or to be given any discretion to determine when to vary a Court order.

14. It is not possible for the Court to give the police any discretion.  If the parties do not obey a Court order, then it is possible for a party to apply to this Court to have an order made which authorises the police to enforce the order of a Court which has not been obeyed.  In due course the police, in some circumstances, have the ability to give assistance to this Court in bringing about enforcement of penalties should there be proceedings brought because parties have failed to obey Court orders.

15. The Court does not have the power to give the police discretion to vary Court orders as they might see fit.  Nor do the police have the authority to accept any such discretion.  I therefore propose to dismiss paragraph 2 of the interim procedural orders of the Initiating Application of the father, filed on 6 February 2012.

16. The other question of significance to be determined is inter-related with the mother’s application that the orders of 13 September 2010 be clarified.  Those orders provide for D to live with the father and for her to spend time with her mother, each alternate weekend from 5.00 pm Friday until commencement of school on the Monday during school terms, to commence on the first Friday of each new school term;  for the first half of the short school holiday periods at the times specified in paragraph 6 of those orders and for half of the Christmas school holiday periods for the time specified in paragraph 6 of that order of 13 September 2010. 

17. The orders of 13 September 2010 make specific directions in relation to the child B living with the mother and spending specific time with the father.  There are also specific orders made in relation to other special days and in relation to handovers.

18. The material which is before the Court from the father indicates that there have been ongoing disputes, from time to time, between the mother and the child D and that the relationship between D and her mother could not be described as ideal.  That needs to be seen in the context of proceedings which have been before the Federal Magistrates Court and this Court for many years.  The Court file is a 2007 Court file.  A substantial part of the children’s lives has been a time when their parents have been unable to agree upon the decisions to be made which were in the best interests of the children and the children have been involved in litigation before this Court for many years.

19. The dispute between the parties and the difficulties of the children in their relationships with the parents and other persons, needs to be seen in that context. 

20. The provisions of the Family Law Act 1975 (Cth) (“the Act”) stress that the decision has to be made which is in the best interests of the children. The need to protect the children from harm, whether that is physical, psychological or emotional harm, is a significant matter.

21. The difficulty in this matter, however, is making a decision based on the Act and the authority such as Goode & Goode (2006) FLC 93-286 bearing in mind the dispute between the parties as to the factual basis for the difficulties in the relationship and whether those difficulties are the result of the ongoing litigation between the parents, the ongoing disputes between the parents or the behaviour of one or both of the parents.

22. In view of the orders which are being sought and the comments made by the father in his submissions, I am not satisfied that at this stage, it is appropriate to make an interim order which provides for the child D to live with the father and not spend time with the mother.  Nor am I satisfied that there is sufficient evidence before the Court to establish that it is B’s best interests to live with the father.

23. I am satisfied on an interim basis (and pending the Court’s receipt of the further evidence) that the orders of 13 September 2010 should remain in force.  The orders therefore that I make, will be that pending final determination of the proceedings that the orders of the Federal Magistrate Court made by Lindsay FM on 13 September 2010 continue in force.  Those orders provide for D to spend time with her mother each alternate weekend during school terms.

24. The orders which were made by the Registrar on 22 May 2012, provided for the mother to file and serve a response to the Initiating Application within seven days of that date.  That period has expired.  In relation to the arrangements for the child responsive program consultations, I understand they have already been put in place and are to take place soon.

25. The Court has attempted to bring about mediation or conciliation in relation to the dispute between the parties.  I express my concern about the ongoing dispute and the effect that ongoing litigation and this level of dispute between the parties has upon all family arrangements.  It is likely to have a significant effect, not only upon the parties themselves but the children for whom they have responsibility.  The Applications in the Case have now been dealt with.  That leaves the Initiating Application and the response when it is filed to be dealt with in the usual way.

26. The matters which were previously listed for 21 June have been brought forward to today, so that date can be vacated.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 5 June 2012.

Associate: 

Date:  15 June 2012