Icke and Icke

[2009] FamCA 197

FAMILY COURT OF AUSTRALIA

ICKE & ICKE [2009] FamCA 197

FAMILY LAW – PRACTICE AND PROCEDURE – Children

APPLICANT: Ms Icke

RESPONDENT: Mr Icke

INDEPENDENT CHILDREN’S LAWYER: Brendan Bowler

FILE NUMBER: ADF 1329 of 2006

DATE DELIVERED: 13 February 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 13 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr J Bowler

SOLICITOR FOR THE RESPONDENT: Judith Cocks

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr B Bowler

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Mr B Bowler

ORDERS

1. That the orders made by Dawe J on 24 September 2008 be varied as follows:

   (a)To provide that the child … born … February 2003 spend time with the father as follows:

   (i)from 10:00am on 14 February 2009 to 5:00pm on 15 February 2009;

   (ii)from 10:00am on 21 February 2009 to 5:00pm on 22 February 2009;

   (iii)from 10:00am on 7 March 2009 to 5:00pm on 8 March 2009;

   (iv)from 10:00am on 14 March 2009 to 5:00pm on 15 March 2009;

   (v)from 10:00am on 28 March 2009 to 5:00pm on 29 March 2009;

   (vi)from 10:00am on 4 April 2009 to 5:00pm 5 April 2009;

   (vii)from 10:00am on 18 April 2009 to 5:00pm on 19 April 2009;

   (viii)from 10:00am on 25 April 2009 to 5:00pm 26 April 2009;

   (ix)from 10:00am on 9 May 2009 to 5:00pm on 10 May 2009;

   (x)from 10:00am on 16 May 2009 to 5:00pm on 17 May 2009;

   (xi)from 10:00am on 30 May 2009 to 5:00pm on 31 May 2009; and

   (xii)from 10:00am on 6 June 2009 to 5:00pm on 7 June 2009.

   (b)To provide that handovers for the purpose of the said child spending time with the father in accordance with paragraph 1(a) hereof take place inside the S Police Station PROVIDED THAT in the event that the H Children’s Contact Service becomes available for handover then handover take place at that Service.

2. That UNTIL FURTHER ORDER the mother be restrained and injunctions be granted restraining her from:

   (a)Discussing the issues from the Domestic Violence Restraining Order proceedings, any abuse allegations and any criminal proceedings affecting either of the parties, with or in the hearing of the said child;

   (b)Causing or permitting any other person to discuss the issues from the Domestic Violence Restraining Order proceedings, any abuse allegations and any criminal proceedings affecting either of the parties, with or in the hearing of the said child;

   (c)Causing or permitting any other person, specifically including Mr D:

   (i)denigrating the father in the hearing or presence of the said child; and

   (ii)discussing the within proceedings in the hearing or presence of the said child.

3. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

4. That the Application in a Case filed by the father on 21 January 2009 be dismissed and removed from the active pending cases list.

5. That the question of the father’s costs be further reserved to the hearing on 23 March 2009.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1329 of 2006

MS ICKE

Applicant

And

MR ICKE

Respondent

EX TEMPORE REASONS

1. I have before me an application filed by the father on 21 January 2009 seeking a number of orders.  Summarising them briefly, an order that the mother deliver up the child in accordance with the current order, which was an order made on 24 September 2008; an order that the child spend make‑up time with the father for weekends that have been missed; various injunctions; also an order that the mother attend a Kids Are First post orders parenting program.

2. Perhaps I will deal with the latter aspect first.  That is not pursued just at the moment.  It is an application which I would be interested in, but the timing is probably not right at this stage given what is happening in the matter and also that there is another first day of trial set for 23 March.  In any event, that application is not being pursued for the moment.  The other applications though are.

3. As I said, this application was filed on 21 January.  It was served, I am told, on 23 January.  The matter first came before me earlier this week, namely on 11 February.  The mother appeared in person on that day.  Her previous solicitors filed a Notice of Ceasing to Act on 16 January 2009.  She told me on the 11th that she was trying to find alternative legal representation, but there were difficulties with the funding cap from the legal aid point of view.  She understood she might be able to be assisted by the Southern Community Justice Service, which is a community legal aid centre.  In any event, she did not have legal representation and she wanted the matter adjourned to obtain that representation.

4. I adjourned the matter to today and made orders for the mother to file and serve any responding documents on which she intended to rely, because I indicated to her that on the evidence that was before the court I would be granting the application. 

5. Today the mother is still unrepresented.  She tells me that she has made further inquiries and spoken to other lawyers, but they have been unable to assist her.  She is still hopeful of obtaining alternative legal representation, but she has not achieved that yet.

6. I also note that the mother has not filed any responding documents.  With the consent of counsel for the father and counsel for the Independent Children's Lawyer, the mother has handed up a brief medical report together with a letter of referral from the author of that report to a psychologist, I assume, Dr P.  I have read that brief report.

7. The mother is in a difficult position.  She has no legal representation.  She has no documentation before the court, save and except this brief report.  I have allowed her to make submissions, but limited submissions, from the bar table.

8. What she is putting to me is that she is afraid for the child.  Her prime position is she does not want the child to spend time with the father because of her concerns.  She says the child is afraid and the child does not want to see her father.  However, she would agree to the child spending time with the father if it was supervised.  That is a very general summary of what the mother has told me.

9. In terms of the position of the father and the Independent Children's Lawyer, the father pursues his application today and Counsel for the Independent Children's Lawyer tells me that he supports that application, particularly in the absence of any responding documents from the mother.

10. I propose to make the orders that are sought, although slightly amended, and I will come to that in a moment.  I need to make some further remarks though to put this all into context.

11. This is a matter which was originally listed for a first day of trial before me on 27 November 2008.  An application was made by the mother, I think - although it does not much matter by whom - to adjourn that first day because the father had been or was about to be charged with certain criminal offences which impacted upon the proceedings.  In the end result, I did adjourn the matter and adjourned the first day of trial to 23 March 2009 for directions.

12. I was told that the father would be pleading not guilty to the charges and there was also the prospect of the charges not proceeding.  Just to pursue that for the moment, I am told today that the father is next due to appear on 23 or 24 February and that currently the Director of Public Prosecutions is considering whether the charges will be proceeded with.  Hopefully that will be known on that date in February, but if it is not, then obviously I hope that issue will be decided one way or the other before 23 March.  I obviously can only proceed with the first day of trial if those criminal proceedings have been dealt with in some way.  It may be there are other ways around it, but that is the difficulty at the moment.

13. Apart from an application to adjourn the first day of trial, the mother as part of that application - and indeed I have confirmed it was the mother's application which was consented to by the father in the end result - also sought that all previous orders providing for the father to spend time with the child be discharged, or in the alternative that those orders be discharged and the father spend time with the child each alternate Saturday for two hours, such time to be supervised at the H Children's Contact Service.

14. That application was opposed, but in any event on 27 November when the mother was represented - indeed represented by counsel - I was told that the mother was not proceeding with that application and therefore one of the orders I made on that day was to dismiss that application.  The effect of that was that the orders that were in place and specifically the order of 24 September 2008, continued.  That was an order made by Dawe J which provided for the child to spend time with the father from Saturday 9:00am to Sunday 5:00pm each alternate weekend, with handovers at the H Children's Contact Service.  I understand that because of the requirements of the contact service, the handover in fact takes place at 10:00am on the Saturday rather than 9:00am.  In any event, the effect of the mother withdrawing and not proceeding with her application and it being dismissed it was that that order continued.

15. However, I am told in the affidavit filed by the father in support of his application today, that the child has not been presented by the mother at the Children's Contact Service on any of the weekends that the child was due to spend time with the father, commencing from 22 November.  Indeed, that has continued to the present time.  The next occasion of time spent under the order would be this coming Saturday.

16. Annexed to the affidavit of the father is correspondence sent by his solicitor raising this issue of noncompliance with the order and seeking responses.  That was unsuccessful both in terms of eliciting any substantive response or indeed any compliance by the mother with the ongoing order.  The only response that was received to several letters was a letter from the mother's solicitor saying that she was no longer acting.

17. I find that a very concerning state of affairs.  Orders of this court are to be obeyed yet.  The mother has not complied with them.  In the circumstances she is very lucky that the father has chosen to make the application that he has, rather than to seek that the mother be dealt with for contravention of those orders.

18. The penalties for contravention range up to and including - depending upon the seriousness of the matter - gaol.  The mother though has simply ignored the orders and has made no application whatsoever to vary them.  The application that she did make was dismissed because she was not proceeding with it.

19. As a result of this, the child has been deprived of seeing her father since 22 November.  That might have suited the mother's convenience, but the mother might take a moment to think about the child.  To repeat, the effect of it is that the child has been denied the opportunity and the ability to see her father since 22 November, in direct breach of orders of this court, with no application to vary or discharge that order or to bring to the attention of the court if there are difficulties or problems with it, and there is still nothing before the court.  There is absolutely no basis, given that history, why I should not make the orders that the father seeks.

20. The mother made submissions about the father's behaviour and how it has impacted upon the child and the child being afraid, and safety issues being involved.  That is all very well, and I am told that complaints have been made to Families SA and referrals to the Children's Protection Service, but the mother tells me absolutely nothing is being done by any of those organisations.  That is confirmed by the father's counsel.

21. The police are involved obviously because of the charges that have been laid.  The charges, incidentally, do not relate to any offence alleged against the child.  They relate to alleged offences committed by the father against the mother, as I understand it.

22. That does not mean to say they do not impact upon the child.  They certainly do given the circumstances and facts alleged but the point is they are not offences against the child.

23. I have taken the opportunity to read a Children and Parent Issues Assessment report which was provided to this court by one of our family consultants, Dr B.  It is dated 23 December and it has been distributed to the parties.

24. I note from that assessment that a previous family assessment by Mr M is referred to in that assessment.  He found that the child enjoyed both her parents, she was comfortable in the presence of both parents and able to stay overnight with her father.

25. Significantly, and this is confirmed in the affidavit material that is on the court file, each party - and I bring the father in here - have seen fit to make complaints to Families SA about the other of them.  Some of those have been investigated, some have not.  I am not being asked to make any finding about the truth or otherwise of the allegations made by either party, but what struck me from the assessment report is that there is clearly a situation here where this child is being subjected to conflict emanating from both of her parents.

26. She has been prevented from seeing her father since November.  She is obviously fully aware of what is going on.  She has been asked to be interviewed by police.  Both parties surely must have known that making complaints to Families SA and referrals to CPS would have involved the child in being interviewed.  This is a very young child of six years of age.  I sympathise with her position entirely in terms of how her parents are behaving towards her.

27. I do not know what the parties expect for the future, but they are the parents of this child, and to continue to behave like this will have a severe and long‑lasting impact and effect on this child from which she may not recover.

28. To repeat though, there is nothing before me to indicate that I should not make the orders that the father seeks, and so I propose to.  However, in looking at make‑up time, what I propose to do is to provide that until the lost time is made up, the child will spend two out of every three weekends with the father.

29. I move to the issue of the injunctions that are sought.  It is quite apparent to me from the affidavit of the father and from the Parent and Childrens Issues Assessment, that there is a need for an injunction to be put in place to prevent this child being subject to comments and discussion by the mother and Mr D.

30. The father should take heed as well.  I am not being asked to make any injunction in relation to what he might say or do in the presence of the child, but the father should take on board what I am saying, which is no discussion of these proceedings with or in the presence of the child whatsoever.  If there is any hint of that happening, then there will be an injunction restraining him in the same way as I am going to make an order restraining the mother.  It is totally inappropriate to involve the child in adult issues.

31. Mr Bowler, counsel for the Independent Children’s Lawyer, has reminded me that as a result of the mother's failure to comply with the orders of this court, the Children's Contact Service have indicated that they are no longer available for handover.  As a result, the default position needs to come into play, which is handover at the S police station.

32. The use of police stations for handovers is a situation to be avoided at all costs.  It has to be a last resort.  Again, I am concerned - and I make particular mention of it - that this has only happened as a result of the mother's failure to comply with this order.  If the mother has the interests of the child at all in mind, she will do all she can in the shortest possible time to enable handovers to be resumed at the Children's Contact Service.  In the meantime, the order I make will have to require handover at the S police station.

I certify that the preceding 32 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 13 February 2009.

Associate