Holgar and Stott and Anor

[2015] FamCA 371

FAMILY COURT OF AUSTRALIA

HOLGAR & STOTT AND ANOR [2015] FamCA 371

FAMILY LAW – CHILDREN – Interim Orders – where father seeks to increase the time spent with the child – where Court is unable to make findings on interim basis – developmental and psychological wellbeing – not in best interests of the child to spend overnight time with the father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Holgar

1st RESPONDENT: Ms Stott

2nd RESPONDENT: Ms B Stott

INDEPENDENT CHILDREN’S LAWYER: Adey Lawyers & Mediators

FILE NUMBER: ADC 2199 of 2008

DATE DELIVERED: 13 May 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 13 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE 1ST RESPONDENT: Ms Lewis

SOLICITOR FOR THE 1ST RESPONDENT: Georgina Parker Lawyers

COUNSEL FOR THE 2ND RESPONDENT: n/a

SOLICITOR FOR THE 2ND RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adey Lawyers & Mediators

Orders

1. The previous orders in relation to the father spending time with the child are discharged.

2. The father spend time with the child C born on … 2006 from 10.00 am to 4.00 pm each alternate Saturday commencing on Saturday 16 May 2015.

3. All handovers to take place in accordance with the previous orders.

4. The father’s Application in a Case filed on 13 March 2015 is dismissed and removed from the active pending cases list

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holgar & Stott and Anor 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 2199 of 2008

Mr Holgar

Applicant

And

Ms Stott
1^st Respondent

And

Ms B Stott

2^nd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter which has been before the Federal Magistrates Court (as it then was) for a significant period of time and was then transferred to this Court.  The matters have also been before this Court for a period of time and the matter is in the queue awaiting a listing for trial.  I will make some enquiries as to its progress in due course.  What is before me today again is another Application in a Case made by the father seeking an increase in time that he spends with the child pending the trial. 

2. This matter has, as I previously said in ex tempore reasons, involved serious allegations concerning the capacity of the parents and their attitude towards their responsibilities as parents and, in particular, their acknowledgement of the needs of the child.

3. The child, C, is the subject of these proceedings, and it is clear from the information before me that there are significant issues which will need to be determined in relation to his needs and specifically in relation to his health.  The child was born in 2006 and is therefore aged eight.  However, it is also clear from reports annexed to affidavit material before the Court that he has been diagnosed with significant difficulties in relation to this development, being mentioned in the reports, the autism spectrum, ADD and dyslexia.  There is clearly indication of difficulties he has faced at school.

4. The father raises again before the Court the fact that for a considerable period the child did not attend school when he was of an age when he should have been regularly attending school.  There have been issues raised in relation to this previously. 

5. What I have before me today is the further Application in a Case by the father seeking an increase of time from the time that he spends now seeking that he have each Saturday and each alternate weekend.  The increase in time is opposed by the mother, the maternal grandmother and the Independent Children’s Lawyer.

6. On behalf of the Independent Children’s Lawyer it is proposed that the Court take into account the most recent family report which was prepared on 2 February 2015 after significant interviews had taken place and assessments of the parties and their relationship with the child.  In the recommendations commencing at page 107 it states that the maternal grandmother should have at least shared parental responsibility or, if the Court has the view the parties would not be able to safely, fairly and effectively communicate to make decisions for the child, sole parental responsibility;  that the child spends time with the father every second Saturday from 10.00 am to 4.00 pm, and on each Wednesday the father collect the child from school, provide him with tea and return him to the police station at 6.15 pm.

7. The recommendations continue, that the child reside with the maternal grandmother and spend time with the mother on weekends when not with the father, and the maternal grandmother determine any additional time the child spends with the mother.  There are then other ancillary recommendations made. 

8. This is an interim hearing and, as I have explained to the parties before, I am not in a position to determine the significant factual matters which are in dispute.  There is an issue concerning the father’s violence and his capacity to cope with the child’s developmental difficulties if the child should be in his care for an extended time. 

9. There are issues in relation to the mother’s alleged drug abuse and her capacity to provide appropriate care for the child.  There are also issues raised by the father claiming that the maternal grandmother is attempting to place matters before the Court which are not true with a view to restricting the time the father spends with the child. 

10. There are serious matters to be determined and taken into account.  It is also significant that the child has spent considerable time with the father over a period of time, with a gradual introduction of the relationship. 

11. I take into account, however, the significant independent findings made in the Family Consultant’s report, which again will have to be tested when the matter, if necessary, proceeds to trial. 

12. The Court is required, under the provisions of the Family Law Act 1975 (Cth), to place the welfare of the child which includes consideration of the need to protect the child from any possible harm (whether it is physical, psychological or emotional) as the paramount consideration. The other primary consideration is for the Court to consider the benefit for the child of having a meaningful relationship with both of the child’s parents.

13. In this case, as I have already indicated, it is not possible for the Court to determine what is the true factual basis of the allegations made by all of the parties.  I do take into account, however, the significant material in relation to the concerns for the child’s development and psychological wellbeing as a result of the significant difficulties which are diagnosed in the medical reports now before the Court. 

14. Therefore, it is not in the child’s best interests on this interim basis to make any orders which would provide for the child to spend overnight time with the father.  That may be a decision which will be made after all the appropriate evidence has been heard and tested. 

15. The orders, therefore, which I consider to be in the best interests of the child on an interim basis that the child spend time with the father each alternate Saturday from 10.00 am to 4.00 pm, and that otherwise the orders which are in existence providing for the child to live with the maternal grandmother and spend time with the mother continue. 

16. The orders will be that the previous orders in relation to the father are discharged, and an order that the father spend time with the child, the child, from 10.00 am to 4.00 pm each alternate Saturday, commencing on Saturday, 16 May 2015 with handovers to take place in accordance with the previous orders.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 13 May 2015.

Associate: 

Date:  20 May 2015