HOCKLEY & HOCKLEY

[2011] FamCA 942

FAMILY COURT OF AUSTRALIA

HOCKLEY & HOCKLEY [2011] FamCA 942

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where the father alleges that the mother has mental health issues – where the mother expresses serious concerns about her and the child’s physical and mental health if he were to spend time with the father – where the matter has a long and complex history – where the Court must err on the side of caution at this stage of the proceedings – best interests – no orders for the child to spend time with the father pending trial.

FAMILY LAW – CHILD SUPPORT – interim orders – application by the father seeking that monies he has paid to the Child Support Agency be held until a new assessment has been completed – where the mother has yet to notify the Child Support Agency of any significant changes which need to be taken into account – where the mother has yet to file her responding documents – orders that the matter be adjourned for further hearing.

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Hockley

RESPONDENT: Mr Hockley

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 845 of 2010

DATE DELIVERED: 6 December 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 6 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lee

SOLICITOR FOR THE APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: n/a

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

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

Orders

1. The final application (children and financial issues) are referred to the Docket Registrar on a date to be fixed to enable the matter to be listed for a fifteen [15] day trial with the Docket Registrar to follow-up with enquiries to list the matter before a visiting Judicial Officer (if possible) to attend to hear this matter in Adelaide.

2. Pending the trial there be no current order for the child C to spend time with the father.

3. Further consideration of the father’s Application in a Case filed on 3 November 2011 is adjourned to Tuesday 17 January 2012 at 9.15 am before the Honourable Justice Dawe AND UPON NOTING that the Independent Children’s Lawyer need not attend on that day.

4. The mother is to file and serve any answering affidavit upon which she seeks to rely by 4.00 pm on 6 January 2012.

5. The mother take all necessary steps to complete any further application by way of change of assessment or updated information to be provided to the Child Support Agency within the next seven [7] days from today and to provide the father in writing with a copy of the information provided to the Child Support Agency such copies to be provided to the father within seven [7] days from today.

UPON NOTING THAT THERE IS NO OPPOSITION IT IS ORDERED THAT

1. The father forward copies of the Application in a Case and supporting affidavit in relation to the child support issues to the Independent Children’s Lawyer and that the mother also provide copies of any documents in relation to the Child Support Agency to the Independent Children’s Lawyer.

BY CONSENT IT IS ORDERED THAT

1. The parties attend a Legal Services Commission conference fixed for 3 February 2012 at 10.00 am to enter into genuine negotiations to resolve all matters.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 845 of 2010

Ms Hockley

Applicant

And

Mr Hockley

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter that I have before me is an application by way of interim hearing and also to prepare the matter for trial.  The proceedings have been on foot for a considerable period of time.  Significant issues arise which include one of the primary considerations, namely the father having a meaningful relationship with the child.

2. The difficulty in this matter is significant in that the allegations made by each of the parents are hugely at odds with each other.  If the father’s situation is to be believed, then there is consideration to be carefully given to the mental health of the mother and the mental health of the child in her care.  If the mother’s situation is to be believed, then there is serious consideration to be given to the risk to the mother and to the child of an ongoing relationship between the child and the father.

3. There are many other factual matters to be determined which are significant in relation to a determination of what is in the best interests of the child, C.  The Court has the benefit of the Family Report and the last report which was prepared in relation to whether any further interviews would currently be of assistance.  It appears from the Family Consultant’s report and from the submissions of counsel for the Independent Children’s Lawyer that issues in dispute between the parties need to be heard and determined and the truth of the matters ascertained.

4. The Court is in the very difficult position at this stage.  The Court takes into account the requirement in the matter of Goode and Goode (2006) FLC 93-286 that consideration must, even at this interim stage, be given to what is in the best interests of the child in accordance with the provisions of the Family Law Act 1975 (Cth). The primary considerations relate to ensuring that the child, were possible, has a meaningful relationship with both of the child’s parents.

5. The situation at the moment is that the father does not have a meaningful relationship with the child and has not had an opportunity to have that meaningful relationship because of the attitude of the mother.  It is necessary, in due course, to determine whether the attitude of the mother is, as the father says, one of hatred towards him rather than based upon any substantial factual matters.  If that were the case, then one of the ancillary factors to be taken into account, namely the steps that the mother has taken since the separation of the parties and her willingness to encourage a relationship, will be significant factors which do not go in her favour.

6. If, however, the mother’s evidence is accepted, then there would be serious concerns about the physical and mental health of the child and the mother if orders were to be made in relation to time spent with the father.  It is not possible on the documents themselves to sufficiently test the evidence to enable a decision to be made in relation to the best interests of the child, C, in a way that would ensure the child’s protection. 

7. This is one of those unusual cases where the type of allegations and the amount of allegations are such that it would not be possible for the Court to determine now in a satisfactory way, what is in the best interests of the child.  It seems to me that notwithstanding the attempts of the Court to limit the issues that the issues have indeed continued to grow since the litigation first commenced. 

8. In those circumstances and taking into the account the considerations of the counsel for the Independent Children’s Lawyer, that caution must be exercised and the order will be that there be no current order for the child to spend time with the father pending the trial. 

9. In relation to the financial matters, the Application in a Case filed by the father in relation to child support monies seeks that the monies he has currently been paying to Child Support Agency be held by the Child Support Agency and not disbursed until a new assessment has been completed and the mother has notified the Child Support Agency of all significant changes that need to be taken into account.

10. I accept that the father’s application was filed on 3 November 2011 and served shortly thereafter.  The mother has not obtained legal aid in relation to the Child Support Agency matter, nor has she replied to the affidavit in relation thereto.  On the information provided by the father at the bar table this morning, she has still not taken any steps to notify the Child Support Agency of the changes in her arrangements. 

11. The balance, therefore, needs to be as to whether pending the adjournment of the further hearing of the matter the moneys should be held by the Child Support Agency or paid out to the mother. 

12. At this stage, I propose to adjourn the matter to come back before me to give the mother an opportunity to attend to the Child Support Agency requirements which are overdue and to file an affidavit explaining her situation and setting out any other material that the Court might consider when determining whether to grant the father the order. 

13. In the interim period, because the matter is a Child Support Agency payment and because the full particulars are not before the Court (albeit that that is the mother’s fault) I do not propose to make the orders sought by the father.  I adjourn the further consideration of the application in a case filed on 3 November 2011 to 17 January 2012 at 9.15 before me.

14. An order requiring the mother to apply to the Child Support Agency for reassessment within seven days from today should have the effect of bringing about a changed assessment which is one of the arrangements that the father was in fact seeking in his application. 

15. The children’s matter stands referred to the Docket Registrar on a date to be fixed to enable the matter to be listed for a 15-day trial, with the Registrar to follow up with inquiries to list the matter before a visiting Judicial Officer if possible.

16. I note that there is no opposition to the order that the father forward copies of the application and the supporting affidavits in relation to child support matters to the Independent Children’s Lawyer, and that the mother also provide copies of any documents in relation to the Child Support Agency matter to the Independent Children’s Lawyer.  That obviously does not have to be formal service, just a photocopy in the post, to reduce the cost.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 6 December 2011.

Associate: 

Date:  14 December 2011