LINDBERG & HILLMAN

[2015] FamCA 351

FAMILY COURT OF AUSTRALIA

LINDBERG & HILLMAN [2015] FamCA 351

FAMILY LAW – CHILDREN – Final Orders – with whom a child lives – wishes of the child – best interests of the child – importance of maintaining meaningful relationship to be weighed against risk to the child – final orders made by consent - eldest daughter to live with mother who shall have sole parental responsibility.

FAMILY LAW – CHILDREN – Interim Orders – where father admits he hit the youngest child – criminal charges withdrawn – wishes of the child - need to protect the child from physical and psychological harm – best interests of the child - until further order the youngest daughter to live with the mother who shall have sole parental responsibility.

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Lindberg

RESPONDENT: Mr Hillman

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 1221 of 2007

DATE DELIVERED: 15 April 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 15 April 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: Mr Anderson

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

Orders

NOTING THAT the two charges against the father for aggravated assault on the children have now been withdrawn.
AND FURTHER NOTING THAT the mother asserts the existence of an intervention order against the father which identifies the children D and B as protected person BUT THAT the father denies the existence of the same.

BY WAY OF FINAL ORDER IT IS ORDERED THAT

1. The Orders made on 28 November 2013 in so far as the Orders relate to the child D born on … 1998 be discharged.

2. The mother has sole parental responsibility for the child D.

3. The child D live with the mother.

4. The child D spend time with the father subject at all times to D’s wishes.

5. The Orders sought by the father in relation to the child D as identified at paragraph 1 of his Response filed on 16 September 2014 is dismissed.

IT IS FURTHER ORDERED THAT

1. Until further order and pending trial:

   (a)the previous parenting orders made on 28 November 2013 in relation to the child B born on … 2003 are suspended;

   (b)the mother has sole parental responsibility for the child B;

   (c)the child B live with the mother and spend no time with the father SAVE AND EXCEPT such time as the parties agree upon in writing.

2. Until further order and pending trial the father is restrained and an injunction is 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 purpose of entering or leaving his own residence.

3. Until further order and pending trial the father is restrained and an injunction is granted restraining him from approaching or communicating with either of the children SAVE AND EXCEPT as the parties may agree in writing.

4. Within fourteen [14] days the father file and serve an affidavit directed to the following topics:

   (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 condition(s) affecting the father UPON NOTING that the father will obtain and annexe to the affidavit a report from his treating general practitioner which addresses the father’s medical condition(s), 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.

5. Within fourteen [14] days the mother file and serve an affidavit directed to the topic of her knowledge of any intervention order against the father which identified the children as protected persons and annexing a copy of any such order.

6. The final application proceedings be referred to the list of matters awaiting trial allocation and are adjourned for trial directions before a Registrar on a date to be advised by the Court UPON NOTING the estimated length of trial is unknown.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lindberg& Hillman 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

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter which comes before the Court on an interim basis concerning the welfare of two of the children of the parties:  D, who was born in 1998, and is therefore 16, and B, who was born in 2003, and is therefore aged 11.  The file clearly indicates that the parties have been litigating in relation to family matters for many years.  The file was first opened in 2007.  There has been significant material before the Court in past proceedings.  Final orders were made by consent in November 2013 which related to the children and the arrangements for their care. 

2. There was a significant Family Report prepared in November 2013 which highlighted the problems that were being created for the children by their parents’ behaviour.  Regrettably, it seems that those problems continue. 

3. The current proceedings commenced in August 2014 when the mother brought an application in relation to the children, D and B.  It appeared from the affidavit material then filed that the children had been in the care of the mother since some time in early 2014, namely, February 2014.  There had been no proceedings brought by either party, notwithstanding the orders of November 2013 until the mother commenced the proceedings in August 2014.  Since then, there have been interim hearings and interim orders made, including the orders in which I gave an ex tempore reasons for judgment in September 2014. 

4. The material now before the Court is quite limited.  Both the mother and father are unrepresented.  The documents before the Court are of a limited assistance because of those difficulties.  It is noted, however, that the Court has received an affidavit from the father in which he deals with the allegation made by the children which the mother puts to the Court, namely, that the father hit them.  He admits that he smacked the children.  The material before me has, of course, not been otherwise tested.  The significant material which was before the Court at the time of the previous orders included that the father was facing criminal charges in relation to the alleged assault of the children. 

5. The father was directed to file material in relation to the charges, and the matter was adjourned.  He has not filed anything other than his own hand-written affidavits, but tells the Court from the bar table today that the charges have been dismissed.  There is a dispute between the mother and the father as to the current status of intervention orders.  The mother maintains that an intervention order is continued against the father, which identifies the children as “protected persons”. 

6. The father denies that such an intervention order continues, and tells the Court, again from the bar table, that he has asked a Minister, presumably of the State Government, to intervene in the proceedings in relation to the intervention order, and that that Minister did intervene in those proceedings.  This is apparently the father’s explanation for his assertion that there is now no continuing intervention order. 

7. What needs to be considered in this matter is, on an interim basis, what is in the best interests of the two children. 

8. The child, D, has apparently expressed strong wishes.  The father is now consenting to final orders, which will discharge the orders previously in existence, and provide for the mother to have sole parental responsibility for the child to live with the mother and have such time with the father subject at all times to D’s wishes.  The father is consenting to those orders.  I make orders in terms of paragraphs 1 to 5, inclusive, of the proposed minutes provided to the Court by the Independent Children’s Lawyer. 

9. The question, therefore, to be determined, is what is in the best interest of the child, B, on an ongoing basis, pending the resolution of the disputed matters by way of trial. 

10. As the authorities indicate in Goode & Goode (2006) FLC 93-286 and subsequent matters, the Court has to decide or attempt to decide what is in the best interests of the child, taking into account the various factors, notwithstanding that there are here serious difficulties in determining the facts upon which those findings should be made.

11. It is clear, however, that the father admits to smacking B.  It is also clear that the mother maintains that the child does not wish to spend any time with the father at this stage.  Whether that is a matter which has been brought about by the actions of the mother or the actions of the father is a matter which will have to be determined in due course. 

12. Principally, of course, the primary consideration is to ensure that the child is protected not only from any physical harm, but from any emotional and psychological harm.  That is the significant factor which I must bring into account, notwithstanding the other significant factor is to consider the benefit to the child of having a meaningful relationship with both parents. 

13. I note that the father has, without making any comment, got up and walked out of the Court, again showing disrespect for the Court. 

14. I continue, however, with my reasons.  Having taken into account the allegations made by the mother and the response of the father in his affidavit in which he admits hitting the children, I am satisfied that on an interim basis it is appropriate to make the proposed orders which provide for the child to live with the mother, for the mother to have sole parental responsibility, and for there to be injunctions restraining the father from approaching or communicating with the children save and except as agreed in writing and in the other terms set out in the proposed minutes of the Independent Children’s Lawyer’s counsel. 

15. I therefore make the orders proposed by the Independent Children’s Lawyer, including paragraph 4.3, which will provide for the father’s information to include the nature of any medical certificate affecting the father, noting the father will obtain and annex to the affidavit a report from his treating general practitioner which addresses the father’s medical conditions, his prognosis, and any treatment required, and specifically dealing with his inability to stand when addressing this Court. 

16. It will also include paragraph 5, which provides that within 14 days the mother to file and serve an affidavit directed to the topic of her knowledge of any intervention order against the father which identifies the children as “protected persons” and annexing a copy of any such order. 

17. Otherwise, in accordance with the proposed orders, the matter is referred to the list of matters awaiting trial listing in terms of paragraph 6 of the proposed orders by the Independent Children’s Lawyer.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 15 April 2015.

Associate: 

Date:  14 May 2015