Icke and Icke

[2008] FamCA 806

FAMILY COURT OF AUSTRALIA

ICKE & ICKE [2008] FamCA 806

FAMILY LAW – CHILDREN – Interim proceedings – With whom a child spends time – Best interests of a child – Where substantial conflict between parties and serious allegations made by both parties – Mother seeks suspension of all of father’s time with child – Impact of conflict and allegations on welfare of child – Consideration of Family Assessment Report – In child’s best interests to spend time with father.

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT: Mr Icke

RESPONDENT: Ms Icke

FILE NUMBER: ADF 1329 of 2006

DATE DELIVERED: 24 September 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 24 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J. Cocks

COUNSEL FOR THE RESPONDENT: Mr Stewart

INDEPENDENT CHILDREN’S COUNSEL: Mr Bowler

Orders

1. The child spend time with the father from Saturday 9.00 am to Sunday 5.00 pm each alternate weekend commencing Saturday 27 September 2008, otherwise suspending the operation of paragraphs 2(a) and 2(b) of the Orders of the 10 September 2007.

2. Handover to effect the above arrangement take place on Saturday and Sunday at the H Children’s Contact Service PROVIDED THAT if the H Children’s Contact Service is not available then the father’s solicitors to notify the mother’s solicitors of the same and contact handover take place inside the S Police Station PROVIDED THAT the mother’s solicitors receives notification of that by 10.00 am on Friday before contact is to take place.

3. Both parties immediately, if possible by 5.00 pm today, contact the H Children’s Contact Service with a view to concluding arrangements for handover to take place at this service.

4. IT IS DIRECTED that the Docket Registrar take steps to prepare the matter for a 1^st Day of Trial in consultation with the parties, solicitors and the Independent Children’s Lawyer as soon as possible AND NOTING that if the father is subject to criminal charges further consideration of the listing for trial may be required.

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

MR ICKE

Applicant

And

MS ICKE

Respondent

REASONS FOR JUDGMENT

1. This is a matter which comes on before me in the duty list concerns the welfare of a young child of the parties who was born in February 2003 and is therefore aged five.  The parties have been involved in litigation concerning the child for many years.  The current proceedings have been on foot since 2006. 

2. I have before me today competing applications seeking orders on an interim basis.  The father's application is to enforce the orders of the Court made in September 2007, which provided for him to spend time with the child and for a recovery order to issue for the delivery up of the child to him.

3. The mother's application in response seeks that the previous orders are suspended until further order and that a family report be prepared to address the issues concerning the child's wishes concerning spending time with the father.

4. I have heard the submissions of counsel for the father, the mother and the Independent Children’s Lawyer.  My attention was drawn to earlier documents on the file, in particular the assessment of Mr M which was conducted in late 2006, early 2007.

5. The history of the matter at the time of the family assessment is set out in Mr M’s report, where it refers to the relevant background.  My attention has been appropriate drawn to that, although the current affidavits filed by the parties certainly bring into strong focus the fact that the parents have been in a stormy relationship and appear to be in constant ongoing conflict.  It is asserted in Mr M's report that that conflict appears to be about the child.  I am not convinced that the parties have limited their conflict to issues concerning the child and am concerned that the parties have not taken steps to reduce the conflict and poor relationship between them, for the benefit of the child, some time ago.

6. The relationship between the parties has the potential to have significant detrimental effect upon the child's development.  I strongly recommend that consideration be given to the parties attending upon professional assistance to allow them to understand how their own behaviours are likely to be harmful, not just to themselves but harmful to the child in particular.

7. In the circumstances of this matter, I will not make any orders that the parties attend upon Kids Are First programs but certainly recommend that consideration be given to that sort of effort being made, with a view to protecting the child's future development.

8. The history of the matter is that the child has primarily resided with her parents since they separated in late 2004.  Obviously at that time the child was a young child and the arrangements which have been in place since then have enabled Mr M to say, following his interviews in December 2006, that:

   [The child] enjoys a good relationship with both of her parents.  She appears to be emotionally secure and confident in their care, and she is well able to stay overnight with her father.  She has a strong, well‑developed relationship with him.  She is familiar with his home and feels secure in his care.

9. That is a quote to which my attention was drawn by the Independent Children’s Lawyer, on page 12 of Mr M's report.

10. Even though this is only an interim hearing, I am required by the provisions of the Family Law Act and the decision of the Full Court in Goode v Goode to make a decision in this matter based upon the criteria set out in the provisions of the Family Law Act, ensuring that the orders which I make are in the best interests of the child. That is of course difficult to ascertain when there are serious allegations brought by both parties which would affect what is in the child’s best interests. In particular, there is an allegation by the mother that the father has threatened not only the life of the mother and her current partner D, but has also has threatened to harm the child or threatened to take the child away so that the mother would never see her again. That is a serious allegation which directly impacts upon the future welfare of the child.

11. The mother has also alleged, as she had done previously, that the father had sexually assaulted her in the child’s presence.  If those allegations are proven to be correct, then the father's capacity to provide appropriate care for the child would be seriously drawn into question.  The father alleges that the mother abuses alcohol and is unable to provide appropriate care for the child. 

12. The report of Mr M after interviews in December 2006, included a paragraph where he said, "The writer is not confident recommending that [the child] should be placed in the full-time care of either parent."  He concluded that paragraph by saying, "It was unclear as to which parent is the more capable or responsible parent."  He concluded on the top of page 13, "The matter remains a complex case and the allegations and counter‑allegations that the parents are making against each other are serious." 

13. That report is dated 5 February 2007.  Since then the matter has progressed to the extent that in September 2007, when the parties who were represented and the Independent Children’s Lawyer appeared before Judicial Registrar Forbes, as he then was, a consent order was made providing that the child spend time with the father from 5.00 pm Friday until 5.00 pm Sunday, each alternate week, and from 3.30 pm Tuesday to 12.30 pm Thursday each alternate week, with specific arrangements for handover.

14. Since that time in September 2007 the matter has been before the Courts from time to time for steps to put in place a final hearing of the matter.  It appears that there was an expectation that the matter may resolve.  Clearly the affidavit material filed in relation to the current application indicates that matters deteriorated significantly as a result of a telephone conversation in which the father admits certain parts of the conversation, however, he denies ever threatening the life of the mother or the child.

15. Paragraph 10 of the father's own affidavit says that he said the following things to the mother's friend D, which he now appreciates are entirely inappropriate.  The substance of those matters set out in paragraph 10 is that he indicated that money was more important to him than his daughter.  He says in paragraph (e), "I then made a comment about the mafia.  I cannot recall the exact words."  But then later in the paragraph denies that he has any connections with the mafia and denies any intention to hurt D in any way, nor any intention to move to Italy or abandon his relationship with the child.

16. The affidavit material filed by the mother, after the affidavit of the father, indicates that until the telephone call the arrangements had been made for the father to continue to spend time with the child, notwithstanding changes to his employment. There is a dispute about the extent of those consensual arrangements.  There is also serious dispute about the threats made by the father.  It is asserted by the mother that the father did mention the mafia and made threatening comments to D along the lines of:  "I know people.  I know where you live.”

17. The mother however did indicate, subsequent to that telephone conversation, that she would comply with the orders of the Court as they then stood.  This is a matter which calls for comment because the mother now says that she does not wish to comply with the orders of 10 September 2007 and wishes all time spent by the father with the child be suspended. 

18. This is hard to reconcile, bearing in mind that there is no further event which has occurred since she initially indicated that she would continue to comply with the orders which would allow the child to spend time with the father, notwithstanding the telephone conversation recently and notwithstanding the allegations of sexual assault by the father upon the mother in the presence of the child.  There may be a reasonable explanation for that factor.  However, that will need to be determined in due course and all of the evidence appropriately tested at the final hearing. 

19. The significant provisions of the Family Law Act which guide me in this matter are that the Court should consider, where appropriate and where issues concerning the need to protect the child do not arise, that the child should enjoy the benefit of a relationship with both parents.

20. Bearing in mind the concession of the mother made immediately after the telephone calls of early May 2008 and the past history of the matter, including the consent orders of September 2007, I am of the view that, notwithstanding the allegations concerning violence which are yet to be tested, and notwithstanding the obviously poor relationship between the parents which may impact upon the child’s wellbeing, it is in the child’s best interests to spend some time with the father in order to maintain a relationship which Mr M described in late 2006 as a well-developed, strong, good relationship.  (I refer to the paragraph on page 12 of that report).

21. The child is now at school and the arrangements which were in place by way of the order of 10 September 2007 are not appropriate.  I take into account the serious allegations made by the mother about the father's attitude towards his responsibilities as a parent, which include her concerns about his violent behaviour.  I note also that it is in the child’s best interests if both parents bear in mind the benefits that would arise for the child if both of her parents behaved in a responsible manner, avoided violence and alcohol abuse and encouraged a relationship, appropriately, with the other parent.

22. The orders of 10 September 2007, which provide for the child to spend time with the father on alternate weekends as well as Tuesday to Thursday are not appropriate now, for various reasons.  The first is that the child has not had time spent with the father now since what would seem to be late April this year and we are now approaching the end of September 2008.  Those months are a significant period of time in the life of a five-year-old child.  The father has employment which keeps him at work for an hour and a half in the evenings on weeknights and the mother is not satisfied that appropriate arrangements have been made by the father for the care of the child at those times.

23. By way of an interim order, therefore, and pending further steps which might make the issues concerning what is in the best interests of the child, her wishes and the capacity of both parents to provide appropriate care for her, I propose to make an order (which has given consideration to all of the factors in the Family Law Act) which provide for the child to spend time with her father from each alternate Saturday at 9.00 am to Sunday at 5.00 pm on each alternate weekend and otherwise suspend the operation of paragraphs 2(a) and 2(b) of the orders of 10 September 2007.

24. I am not making any order for further time to be spent between the father and the child, at this stage, bearing in mind that this will be a reintroduction of the child to the care of her father, taking into account the time that has passed by since she last spent time with him.

25. Handovers were previously taking place either at the H Children's Contact Service or at what was then the child's kindergarten.  Whilst I was proposing that the time spent commence this Saturday, that would have to be subject to the availability of the H Children's Contact Service.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  30 September 2008