Lindberg and Hillman (No 2)

[2015] FamCA 956

FAMILY COURT OF AUSTRALIA

LINDBERG & HILLMAN (NO 2) [2015] FamCA 956

FAMILY LAW – CHILDREN – interim orders – where the matter is not considered appropriate for the Magellan list – where both parties are unrepresented – where the mother seeks a recovery order – where the father seeks that previous orders be discharged – where the father has failed to comply with previous orders – where there is significant involvement by police and child welfare authorities –where consideration is given to the best interests of the child – where intervention of child welfare authorities is ordered – where a child welfare report is ordered – where it is ordered that during the period of adjournment the father deliver up the chid to the care of the mother – where leave is given to issue subpoenas.

Family Law Act 1975 (Cth) – s 60CC, s 67Q, s 69ZW, s 91B
APPLICANT:	Ms Lindberg

RESPONDENT: Mr Hillman

INDEPENDENT CHILDREN’S LAWYER: Mrs Reed

FILE NUMBER: ADC 1221 of 2007

DATE DELIVERED: 29 October 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 29 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Reed

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

Orders

Upon Noting that the orders of 15 April 2015 continue.

1. Pursuant to Section 91B of the Family Law Act 1975 as amended THAT the Court requests the Minister for the Department for Education and Child Development - Families SA be invited to intervene in these proceedings and if the Minister determines not to intervene in these proceedings it is requested that the Minister send a representative to the Court on the adjourned date to explain the Minister’s position.

2. Pursuant to s69ZW the Court requests that the Department for Education and Child Development - Families SA provide a report specifically dealing with the child protection and welfare issues and the general circumstances concerning the child B born on … 2003 including but not limited to any suspected or alleged child abuse issues and mental health issues and that such report be filed at this Court by no later than 4.00 pm on 2 December 2015 UPON NOTING that in the event that Families SA intend to rely upon any report prepared by Child Protection Services (“CPS”) that they also at that time provide a copy of such CPS Report and that report and that of the Minister be provided forthwith to each of the parties and the Independent Children’s Lawyer.

3. For the purposes of the requests pursuant to paragraphs 1 and 2 hereof the Court Registry is directed to supply the Minister copies of the following documents:

   (a)Engrossed Orders of 15 April 2015;

   (b)Ex tempore reasons dated 15 April 2015;

   (c)Application in a Case and supporting affidavit filed by the mother on 26 October 2015;  and

   (d)Response to an Application in a Case and supporting affidavit filed by the father on 27 October 2015.

4. During the period of the adjournment the father is ordered to deliver up the child B born on … 2003 to the care of the mother at the mother’s residence no later than 6.00 pm today UPON NOTING the injunction made on 15 April 2015 is varied to allow the father to attend with the child B at the mother’s residence no later than 6.00 pm today.

5. Paragraph 8 of the order dated 15 April 2015 in relation to the injunctions against the father is continued.

6. The time is extended for the father to comply with paragraph 9 of the order dated 15 April 2015 until 4.00 pm on Friday 13 November 2015.

7. It is directed that the parties and the Independent Children’s Lawyer have leave to issue subpoenas to the South Australian Police, Department for Education and Child Development - Families SA and to the child B’s school PROVIDED THAT the same are filed and served within ten [10] days from today.

8. The parties including the Independent Children’s Lawyer to file and serve any further affidavit of evidence upon which they seek to rely by no later than 4.00 pm on Friday 27 November 2015.

9. Further consideration of both the Application in a Case and the Response is adjourned to Friday 11 December 2015 at 9.15 am before the Honourable Justice Dawe.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lindberg & Hillman (No 2) 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 1221 of 2007

Ms Lindberg

Applicant

And

Mr Hillman

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The proper criteria for declaring a matter as a Magellan matter is not met in this case.  In particular, the abuse allegations being made are not matters which could be considered fresh abuse allegations of the type that would qualify for a Magellan classification.  Notwithstanding that the Court regrets that the mother and father are unrepresented, it is not a basis upon which the Court can declare this matter as a Magellan matter.

2. I am dealing with the Application in a Case filed by the mother on 26 October 2015, and the Response to that Application in a Case filed by the father on 27 October 2015.  I take into account that both parties are unrepresented, and have been for some time, but also take into account that the significant litigation in this matter has been ongoing for many years.  The file itself is a 2007 numbered file.  There have been much litigation and many serious allegations concerning the welfare of the children.  Various orders have been made over the years concerning arrangements for parental responsibility and the care of these two children.

3. What is most significant at this stage is the fact that orders were made on 15 April 2015, by way of final orders in relation to the eldest child, D, who was born in 1998, and is now 16, going on 17.  Those were final orders which provided for the mother to have sole parental responsibility for the child D;  for D to live with the mother and D to spend time with the father, subject at all times to D’s wishes;  and all other proceedings in relation to D were dismissed.

4. Further orders were made by way of interim orders on that date, 15 April 2015.  The parties were both in Court at the time the orders were made, and have since received signed, sealed copies of those orders, to their addresses for service.  The Independent Children’s Lawyer was represented by Mr Anderson of counsel on that day.  The orders were made in Court, when the parties were present.

5. In particular, in relation to the younger child, B, specific orders were made.  B was born in 2003, and is now aged 12.  It is very regrettable that there have been ongoing proceedings in this Court for most of B’s life.  The interim orders were made on 15 April 2015, pending the trial.  The previous orders were suspended, the mother was to have sole parental responsibility for B, and that B live with the mother and spend no time with her father, save and except such time as the parties agree upon in writing.

6. Orders were also made that until further order, and pending trial, that the father is restrained, and an injunction was granted, restraining him from entering upon or approaching within 200 metres of:

   a)the mother’s residence;

   b)either of the schools which the children attend save and except for the father being permitted to approach within 200 metres of the school for the purposes of entering or leaving his own residence.

7. Paragraph 8 provided that until further order, and pending trial, the father is restrained, an injunction was granted restraining him from approaching or communicating with either of the children, save and accept as the parties may agree in writing. 

8. Paragraph 9 provided within 14 days the father file and serve an affidavit directed to the following topics, and then there are listed:

   a)the status of the criminal charges against the father;

   b)the status of any intervention order against the father, including the terms of that order and any pending Court dates;

   c)the nature of any medical conditions affecting the father, upon noting that the father will obtain and annex to the affidavit a report from his treating general practitioner which addresses the father’s medical condition, his prognosis, and any treatment required, and specifically dealing with his inability to stand when addressing this Court;

   d)the father’s proposal for a resolution of the proceedings.

9. There were then further orders which provided for steps to be taken by the mother to file and serve an affidavit within 14 days as to her knowledge of the intervention order, and the final application proceedings were referred to the list of matters awaiting trial, and adjourned for trial directions on a date to be advised by the Registrar.

10. The orders of the Court which provided for the father to be restrained from approaching or communicating with either of the children, save and except as the parties may agree in writing, would appear, on the father’s own affidavit not to have been obeyed.  I have warned the father about his need to get legal advice in relation to possible contravention proceedings.  Paragraph 9, which required him to lodge an affidavit within 14 days, setting out relevant material has not been obeyed.

11. As far as the status of the criminal charges against the father are concerned, it appears from other information now before the Court that those charges were not proceeded with, and as far as the intervention order is concerned, the mother has filed a copy of the intervention order, but information is now given from the bar table, that that intervention has been revoked.  Those were serious matters which were dealt with on 15 April 2015, and specific orders were made in the presence of the parties.

12. The mother now files an Application in a Case seeking the return of the child, B, to her care. Specifically, she seeks an order pursuant to section 67Q of the Family Law Act 1975 (Cth) (“the Act”), providing for the Marshall and police officers to attend and recover the child, B, and return the child to the care of the mother; that it be heard urgently, and she sought other orders, which included that the father be restrained from approaching B, phoning B, or contacting B by any other means; that B’s sister, D, be restrained from entering the E School, where B attends, and that any contact D has with B be supervised, etcetera, and that should D wish to speak to B, there be conditions imposed upon that. She also seeks orders in relation to D not coming to the home, and that D not deliberately approach B.

13. As far as the proceedings are concerned, where the mother seeks orders directed towards D, the child of the parties, and her contact with B, I certainly do not propose to deal with those matters.  The mother needs to understand the proceedings currently before the Court are between the mother and the father concerning B.  D is not a party.  Making orders in relation to a sister’s contact with her sister, is what I would not propose to do on any interim basis, particularly in this case where serious allegations have arisen in relation to the behaviour of both parties and connected persons.

14. I will now deal with the question of the return of the child, B, to the care of the mother, and the Response to the Application in a Case brought by the father. 

15. Both parties are unrepresented, and have been for some time.  The father’s Response to an Application in a Case, I have referred to critically before, and I will read out what purports to be the orders which he is seeking (not referring to any of the spelling errors in either his application, or the mother’s application).

16. The first order that the father seeks is:

    That any orders not be detrimental to B’s relationship with any family member.

    (2)That [B] (….2003) be resident at the father’s address ([S Street, Suburb P]) under my care.  (Interim order).

    (3)That the Court hear from the Families SA as to reports by police, school and others, in regard to tier 2 events.

    (4)That grandparents be included in contact.

    (5)That leave be given for further lodgement.

    (6)Contact with mother ([Ms Lindberg]) temporary cease.

    (7)Any other orders Court deems fit.

17. In relation to the orders sought by the father, I am interpreting them to mean that he seeks an order discharging the previous orders in relation to the care of B, and by implication, I would also assume he wishes to have parental responsibility in relation to the care of B. 

18. In relation to the matters which are before the Court on an interim basis, the Court has also received information, not only by way of the affidavits which the parties have filed, but information from the bar table (which cannot be treated as reliable evidence, firstly, because it is not on oath, and secondly, because it was information which was not available to the other parties, until they heard it in Court this morning). 

19. As indicated by my previous comments, this difficult matter is of concern to the Court involving, as it does, the ongoing litigation and the inability of the parents of these children to take steps and agree upon what is in their children’s best interest.

20. The Act requires the Court to make orders which are in the best interests of the children.  Currently in this case, I am being asked to make specific orders in relation to the child, B, who is aged 12. 

21. The primary considerations are to ensure that the child is protected from harm, and that (where appropriate) has the benefit of a relationship with both of the child’s parents.  It has been difficult in this case to overcome the difficulties created by the children’s parents to enable the children, and in particular, B, to continue to have a meaningful relationship with both parents.

22. The matter will have to be determined after proper evidence has been received, and been tested in the final trial. 

23. However, the Court is in a position where it is necessary to make an interim order, taking into account the allegations which have been made.  The mother alleges that the child has apparently spent some time with the father, about which she is not aware.  The father’s remarks from the bar table also indicate that he has spent time with B, knowing about the Court orders, and knowing that the Court orders were not being obeyed, and has spent time with B at times when the mother was not aware of that.

24. The father’s allegations in relation to the child’s health appear that when she has come to live with him recently she has been ill.  The mother, from the bar table, has confirmed this. 

25. Allegations in relation to a knife incident are vague in the father’s affidavit, and responded to in the mother’s comments from the bar table.  It would appear that there has, however, been significant involvement recently by the police on several occasions, and officers and Families SA as well. 

26. There have also been issues alleged in relation to the father’s health, again recently, because of his remarks, apparently made to the children, concerning his health.

27. I have taken into account the material before me, and as I indicated, the Independent Children’s Lawyer’s submissions.  I accept that the Independent Children’s Lawyer is also in a difficult position, this matter having been brought on very quickly, on the basis that the welfare of the child was a concern.

28. The Independent Children’s Lawyer has, therefore, not been in a position to obtain reliable information from either the school, the police or Families SA.  I propose to make a direction that the parties and the Independent Children’s Lawyer have leave to issue subpoenas to the South Australian Police Department, to Families SA and to B’s school, provided the same are filed and served within 10 days from today.

29. I also propose to make an order requesting the intervention of Families SA in terms which I have previously done. That order will, therefore be pursuant to section 91B of the Act that Families SA be invited to intervene in these proceedings. If the Minister determines not to intervene in these proceedings, it is requested that the Minister send a representative to the Court on the adjourned date to explain the Minister’s position. The Court will forward to the Minister, to accompany that request, the orders of 15 April 2015 and my ex tempore judgment of that date, together with the Application in a Case, affidavit of the mother, Response of the father, and affidavit of the father filed since that date.

30. I also make an order pursuant to section 69ZW that the Court requests the Department for Education and Child Development, Families SA to provide a report specifically dealing with child protection and welfare issues, and the general circumstances concerning the child B, born in 2003, including but not limited to any suspected or alleged child abuse issues and mental health issues, and that such report be filed at this Court by no later than 2 December 2015 upon noting that, in the event that Families SA intend to rely upon any report prepared by Child Protection Services (“CPS”), that they also at that time provide a copy of such CPS report, and that report and that of the Minister be provided forthwith to each of the parties and the Independent Children’s Lawyer.

31. In relation to the interim issues concerning arrangements for B, as I have indicated, it is necessary for the Court to take into account what is in the best interests of the child, the need to protect the child from harm and the need to ensure that, where appropriate, the child has the benefit of an ongoing relationship with each of the child’s parents. 

32. The significant other issues to be brought into account under s 60CC are also taken into account and, in particular, the question of violence in the family home and the capacity of the parties to provide care for the child, and the needs of the child.

33. Taking into account the history of the matter and the disruption caused over the years to the care arrangements for B, and the inability of the Court to determine at this stage the impact of the influence of various parties and other persons upon the behaviour of the child, I am satisfied that during the period of the adjournment it is in the best interests of the child, B, that she be returned to the mother’s care, and that the Court then receive correct information from the various authorities, significantly the police and Families SA, in order to determine what will be in B’s best interests.

34. I, therefore, order that the father make arrangements to return B to the care of the mother by 6.00 pm today.  I would order that the child be delivered up to the mother at the mother’s home no later than 6.00 pm today.  For that purpose, the injunctions made on 15 April 2015 are varied to allow the father to attend with the child B at the mother’s home no later than 6.00 pm today.

35. In relation to the orders which are in existence, the orders provide already that B reside with the mother, and she have sole responsibility pending the trial of the matter.

36. The orders in relation to the restraint of the father, which were made on 15 April 2015, are continued. 

37. I have already noted that the father has failed to comply with paragraph 9 of the order of 15 April 2015, and I will provide for the father to have an opportunity to comply with that order by extending the time for the father to comply with paragraph 9 of the order of 15 April until 4.00 pm on 13 November 2015.

38. I have already made orders in relation to subpoenas to be issued.  In relation to further affidavit material, I order that all parties, including the Independent Children’s Lawyer, to file and serve any further affidavit of evidence upon which they seek to rely by no later than 4.00 pm on 27 November 2015. 

1. I adjourn further consideration of both the Application in a Case and the Response to 11 December 2015 at 9.15 am before me.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 29 October 2015.

Associate: 

Date:  6 November 2016