Mansfield and Roberts

[2010] FamCA 1171

FAMILY COURT OF AUSTRALIA

MANSFIELD & ROBERTS [2010] FamCA 1171

FAMILY LAW – CHILDREN – interim orders – where the mother seeks orders for the return of the child to her care – where the father alleges that the mother was influencing the child inappropriately – where the father’s proposal for a shared care arrangement was inconsistent with his allegations – where the matter has a long history – best interests – orders that the child be returned to the mother and father’s time with the child be suspended pending further order

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Mansfield

RESPONDENT: Mr Roberts

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 1639 of 2008

DATE DELIVERED: 9 December 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 9 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Charman

SOLICITOR FOR THE APPLICANT: Ian Charman & Associates

THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: n/a

Orders

BY CONSENT IT IS ORDERED THAT

1. The parties make arrangements for a psychiatric assessment to be carried out as soon as possible by Dr B, such psychiatric assessment of each party’s parenting capacity on the basis that each party is at liberty to provide to Dr B copies of all documents filed in these Family Court proceedings and other Family Court proceedings PROVIDED THAT each party give the other party a list of the documents so provided.

IT IS FURTHER ORDERED THAT

1. The father deliver up the child L to the mother inside the foyer of the Adelaide Police Station at 4.00 pm today.

2. Pending the receipt of the reports of the Psychiatrist Dr B as to the assessment of each of the parties that the orders that provided for the father to spend time with the child L are suspended until further order.

3. The mother is restrained from removing the child L from her current residential address pending further order.

4. Pursuant to Section 68L of the Family Law Act 1975 as amended THAT the infant child L born on … December 2006 be separately represented and that such representation be arranged by the Legal Service Commission of South Australia AND that to expedite the appointment of the Child Representative within seven days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed since the discharge of the Independent Children’s Lawyer in October 2009 and request that Mr Winter be reappointed as the Independent Children’s Lawyer in this matter.

5. This matter is further adjourned to 19 January 2010 at 9.15 am before the Honourable Justice Dawe.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1639 of 2008

MS MANSFIELD

Applicant

And

MR ROBERTS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. These are proceedings that come before me this morning on the Application in a Case filed by the mother.  However, the Court file indicates that the father brought an Initiating Application, which was filed on 29 November 2010, in which he sought certain final orders and interim orders. 

2. That matter was listed before a registrar in the usual course.  Together with the Initiating Application, the father filed his affidavit and subsequently has filed further affidavits and an affidavit of his current wife. 

3. The mother then filed an Application in a Case on 6 December 2010, which was urgently listed before me on the basis that the application was seeking the immediate return of the child and a suspension of the father’s time with the child.

4. This matter has a significant history.  Previous proceedings appear to have commenced in relation to the child back in April 2008.  That is significant because L, the child of the parties, was born in December 2006.  This therefore indicates that for most of the child’s life, or certainly for a significant part of the child’s life, there has been considerable litigation in this Court. 

5. In October 2009 the matter was listed for hearing.  The orders of 27 October 2009, made by me, indicated that the father had discontinued his proceedings in relation to the child, L.  Final orders were made on 27 October 2009, which provided that the mother was to have sole parental responsibility for the child and that the child live with the mother.

6. The order also provided that the child spend time with the father on specific occasions, at different times, being each alternate weekend until the child attends kindergarten;  after the child attends kindergarten, for the same time as set out above,  but in the event that the child has a session of kindergarten at the time scheduled for handover, then handover shall occur by collecting the said child from kindergarten.  The orders then continued to make provision for the father to spend specific time with the child after she attended school.  There were provisions for handover and other incidental orders.  Those orders remained in place and are still in place, notwithstanding the actions of the father in retaining the child when the child was due to be returned to the mother on Monday, 29 November 2010.

7. The child was not returned to the mother on 29 November 2010, but on 29 November 2010 the father initiated these proceedings in which he sought interim orders that the child live with him and that the child live with the mother at times “deemed appropriate by this Honourable Court”. 

8. When the matter came on before me this morning, Mr Charman appeared as counsel for the mother, Mr Roberts, the father, appeared unrepresented.  He relies on the affidavit material on the Court file, to which I will refer later.  When asked what he was proposing by way of interim orders, the father indicated to the Court, this morning, that he wanted the child, L, to live with both himself and the mother equally.  He indicated he would consent to an order that the child live one week with him and one week with the mother.

9. That concession in open Court appears quite inconsistent with the basis upon which he says he retained the child, namely, that the child was behaving in a sexually inappropriate way towards him and that he therefore believed the mother was taking steps to make a false allegation that he had sexually abused the child. 

10. The affidavit material filed by the father on 29 November 2010 contains various matters, some of them (as Mr Charman points out by way of summary) refer to the father’s perception that the mother has behaved poorly, that the mother does not like him, and that, for those reasons, including what he says are abusive remarks to him and the social worker about him, form a basis upon which the child should be retained.  The father annexes to his affidavit the Women’s and Children’s Hospital letter indicating that in July 2010 (months before he took any action) the father took the child to the Emergency Department of the Women’s and Children’s Hospital for examination because it says:

    “Father concerned re comments daughter is making – describes as sexual.  And she has also complained of vaginal pain.”

11. The examination did not indicate any physical concern, and it concludes:

    “After discussion with Child Protection Services, [the child] has been discharged home into the care of her dad.  CPS will liaise with Families SA and will contact [the father] if required.”

12. There are also other annexures in relation to allegations made by the father in his affidavit, including what he alleges is inappropriate Facebook communications, and the delay in the mother returning the child for a period of time spent with the father due to her inability to return immediately from Queensland as a result of storms and airline delays. 

13. The mother has filed a responding affidavit giving her version of events, and putting to the Court other matters concerning the father and his behaviour. 

14. It is not possible on the interim hearing to determine the truth of the facts alleged by each of the parties.  The Court has to do the best it can with the material before it, taking into account the matters which are conceded by each party to be correct.

15. The father concedes today that he is prepared to return the child to the care of the mother on a week about basis.  He says his concerns are that the mother was planning or attempting to allege that he had been sexually abusing the child. 

16. Weighing all of the factors up and, in particular, the history of the matter and the provisions of Part VII of the Family Law Act 1975 (Cth) which relate to determining, on an interim basis, what is in the best interests of the child.

17. This is a matter in which the mother has sole parental responsibility for the child, pursuant to the orders made in October 2009.

18. I am not satisfied that, on an interim basis, there is any need to reconsider the sole parenting responsibility order.  Therefore it is not necessary to consider section 65DAA.  I therefore concentrate on the matters set out in section 60CC, and, in particular, the primary considerations, which are most significant in this matter, namely, the need to protect the child from abuse or harm, and the benefit to the child of maintaining a meaningful relationship with each of the child’s parents. 

19. Bearing in mind the material before the Court and the inability of the Court to determine conclusions in relation to the evidence, I am satisfied that it is in the interests of the child that she be immediately returned to the mother today.

20. I do that on the basis that the father has retained the child without allowing the mother to have time with her since 29 November 2010.  The Court needs to have available to it further material in relation to the psychiatric health of both of the parents.

21. I propose to also order that the mother be restrained from removing the child from her current residential address pending the further order, to ensure that the child is available to be returned to spend time with the father, should that be appropriate. 

22. I also propose to make an order that the child be separately represented by an Independent Children’s Lawyer.

23. The factor that was significant in this matter was the inconsistency between the father’s claim of the need to retain the child but, at the same time, indicating in open Court that he was proposing a week-about arrangement.  This called into question the depth of his belief in the strength of his allegations.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on Thursday, 9 December 2010.

Associate: 

Date:  22 December 2010