LAKE & MANSELL

[2012] FamCA 833

FAMILY COURT OF AUSTRALIA

LAKE & MANSELL [2012] FamCA 833

FAMILY LAW – CHILDREN – interim orders – application by the father seeking orders to spend time and communicate with the children – where the mother makes allegations concerning the father’s violent and inappropriate behaviour – where the father was previously imprisoned for a serious criminal offence – where the father’s parole conditions prohibit him from having any contact with the mother or travelling to South Australia – where the Court held that it was not appropriate to make orders which may risk the psychological or emotional wellbeing of the children – best interests – application dismissed.

Family Law Act 1975 (Cth)
Judicary Act 1903 (Cth) s 79

APPLICANT: Ms Lake

RESPONDENT: Mr Mansell

INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

FILE NUMBER: ADC 1836 of 2009

DATE DELIVERED: 21 September 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 21 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Carruthers

SOLICITOR FOR THE APPLICANT: Carruthers Solicitors

COUNSEL FOR THE RESPONDENT: Ms Read

SOLICITOR FOR THE RESPONDENT: Ann Josephson Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Croft

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

J Richard Croft

Orders

1. It is directed that the Family Consultant’s report be prepared at a time when the listing of the matter for final trial is known and further direct the Docket Registrar to make that order when there is a listing available for a trial hearing.

1. The Application in a Case filed on 27 March 2012 by the father is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lake & Mansell 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 1836 of 2009

Ms Lake

Applicant

And

Mr Mansell

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application made by the father seeking interim orders in relation to the children of the relationship.  The matter is complex.  The children have not spent time or had any contact with the father for a considerable number of years.  That has to be seen in the background to the matter.

2. M was born in October 1999 and is therefore nearly 13.  J was born in August 2001 and is therefore 11.  The children have been residing with the mother all of their lives.  The relationship between the mother and father broke down some time ago. 

3. The Initiating Application filed by the father on 27 March 2012 seeks:

   Orders the Court considers appropriate for the children [M] and [J] to spend time with and communicate with the father, the applicant [Mr Mansell].

4. The interim and procedural orders sought were in similar terms:

   The orders the Court considers appropriate to allow the children [M] and [J] to spend time with and communicate with their father to facilitate a resumption of their relationship. 

5. In support of the application the Court has received affidavit material from the father. The mother has also filed an affidavit.   

6. The significant part of the history of the matter is that the father was charged with a very serious indictable offence in Queensland, but pleaded guilty to a less serious indictable offence and was sentenced to some years in prison.

7. The affidavit of the father filed on 27 March 2012 has as annexures the conditions of parole pursuant to the Corrective Service Act 2006 (QLD), and correspondence with the Parole Board in which the father sought that the conditions of his parole be amended.  The Parole Board refused.

8. There are approximately 25 conditions of his parole which are set out in annexure 1 of the father’s affidavit.  The last two read:

   That the offender not have any contact with [Ms Lake] or any member of her family,

   and

   That the offender is not to travel to or reside in South Australia. 

9. Ms Lake is the mother of the children and the respondent to these proceedings. 

10. It seems on the face of it, therefore, that one of the conditions of the parole of the father when he was released in June 2009 (and which continues until this day) is that he not have any contact with the mother or any member of her family.

11. On anybody’s interpretation the two children the subject of these proceedings would be members of the mother’s family.  The Court is not aware of the exact reasons that the Parole Board placed those conditions on the father, but the mother’s affidavit sets out her concern for any interaction between her, the father or the father and the children based upon allegations she makes concerning his violent and inappropriate behaviour. 

12. At an interim hearing it is not possible for the Court to determine the truth of the allegations.  There are significant differences in the matters put to the Court in relation to what would be in the best interests of the children. 

13. The father’s second affidavit now filed on 20 September 2012 seeks that the father having telephone communication three times a week and on special occasions.  He is also asking for interim orders that would allow the children to be able to spend time with him at designated times by travelling to Queensland.

14. The submissions I have heard this morning from counsel for the father propose that interim orders are made in those terms.  The mother’s counsel strenuously opposes any orders for the father to have any contact with the children or to spend any time with him.

15. The Independent Children’s Lawyer appears this morning and indicates that having interviewed the children, he is of the view that neither child wish to have any form of contact with the father. 

16. Bearing in mind the primary considerations in any matter before this Court are the need to protect the children from harm and the benefit of a meaningful relationship with each of the parents, I am satisfied in this case that the significant factors are the background of violence and concerns raised by the mother which appear to be supported by the significant parole conditions established when the father was released in June 2009 and which have been maintained since then and will continue to apply until September 2014. 

17. In this interim matter, therefore, it is not appropriate to make a decision which might have the risk of significant psychological or emotional harm for the children. 

18. I am also not convinced that it would be in the best interests of the children for the Court to exercise what is alleged to be an authority to override the father’s parole conditions. 

19. I am not satisfied that section 79 of the Judiciary Act 1903 (Cth) can be ignored. The Court should therefore give due recognition to the parole conditions which the Queensland Parole Board have decided not to vary. I do not think that the Parole Board order, made presumably under the provisions of the criminal law in Queensland, can be compared with family violence or child protection orders which might in appropriate cases, be the subject of variation in this Court.

20. In relation to the progress of the matter, I note that it is listed before the Docket Registrar for preparation by way of directions on 30 October 2012. 

21. In relation to the preparation of a Family Consultant’s report, if the father is continuing to proceed with this application (notwithstanding the parole conditions which appear to continue until September 2014) then a Family Consultant’s report may be necessary.  In view of the history of the matter I am concerned about the emotional and psychological impact upon the children of having too many interviews if the same are not necessary.

22. I therefore propose to direct that the Family Consultant’s report be prepared at a time when the listing of the matter for final trial is known.  I direct the Docket Registrar make that order when there is a listing available for a final hearing. 

23. In summary, I do not consider that the significant factors in relation to the best interests of the children make it appropriate for there to be any interim order that the father communicate with or spend time with the children. 

24. I note the matter is already listed before Registrar Paxton on 30 October at 2.30 pm.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 21 September 2012.

Associate: 

Date:  2 October 2012