McMARTIN and McMARTIN

[2009] FamCA 1124

FAMILY COURT OF AUSTRALIA

MCMARTIN & MCMARTIN [2009] FamCA 1124

FAMILY LAW – CHILDREN – where final parenting orders were made by consent in 2005 – where the proceeding were enlivened again in 2006 – application by the father seeking that the evidence be confined to events since the making of the previous final orders – where confining the evidence would hamper the Court in discharging its obligations under s 60CC – application dismissed

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: MR McMARTIN

RESPONDENT: MS McMARTIN

FILE NUMBER: ADF 1270 of 2004

DATE DELIVERED: 16 NOVEMBER 2009

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 16 NOVEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MS COCKS
SOLICITOR FOR THE APPLICANT:	BARR LAWYERS

COUNSEL FOR THE RESPONDENT:	MS LEWIS
SOLICITOR FOR THE RESPONDENT:	SYKES BIDSTRUP

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MR REYNOLDS
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	SRG LAWYERS

Orders

UPON NOTING that all issues touching upon the matters that the Court needs to consider under Section 60CC of the Family Law Act 1975 as amended, both under primary and additional considerations, are matters that this Court need properly explore:

1. The oral application made this day by the father’s Counsel is dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADF1270 / 2004

MR McMARTIN

Applicant

And

MS McMARTIN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This Court has for some time now been seized of this matter which is a dispute in relation to the two children of the parties’ relationship B born in May 2001 and L born in April 2003.  Proceedings between the parties in relation to these children commenced on 23 August 2004, well over 5 years ago. The proceedings came to a formal halt in this Court in terms of their earlier life on 5 August 2005 when final Orders were made by consent.  Those Orders were to the effect that the children were to reside with the mother and she was to have responsibility for their day to day care, welfare and development.  Any contact between the father and the children was on such terms and conditions as they were able to agree, or failing agreement as ordered by the Court.  All matters were removed from the active pending list.

2. Quite clearly over the ensuing years the parties were unable to agree what contact the father might have with the children and the terms and conditions of same and hence as early as 28 March 2006, the proceedings were again enlivened by the father.  There has been many an interlocutory application since that date and indeed the matter has undergone not just the 1^st Day of Trial processes of this Court, but an earlier attempt to conclude the proceedings in May of this year.  That was not possible and it was thought wise to secure an additional expert’s report from Dr C to assist the Court and the parties in an endeavour to resolve their dispute.

3. The report from Dr C indicates that, regrettably, the parties have been totally unable to achieve any form of workable relationship and reach any form of agreement as to what might be an appropriate parenting plan for their children.  Thus some 5 ½ years later these two young children remain caught in the web of their parents’ dispute and the only opportunity for a resolution of the proceedings seems to be as a consequence of a full trial of the issues between them.  My experience tells me that what this trial will offer the parties is not a solution but simply an outcome.  I am hopeful that the evidence will indicate something other than what the past has indicated but it seems unlikely that at the conclusion of any proceedings, the relationship between the parties will be anything but worse.  Experience tells us all that a full and consummate airing of all of the issues between the parties over their now quite lengthy relationship will achieve a significant deterioration in the relationship between them and that will be the unfortunate fate to be suffered by these children.

4. As the parties have left it to the Court to decide what is in the best interests of their children because they are not able to agree upon it, the Court has to have regard to the provisions of the Family Law Act 1975 as amended. The principal provision is section 60CA and that tells the Court that in deciding a parenting issue, the Court must regard the best interests of the children as the paramount consideration. In making that determination the Court is guided to the provisions of section 60CC of the Act which is divided into “primary” considerations and “additional” considerations.

5. The primary considerations are well recognised now as providing a significantly difficult balance for the Court because it proffers as the two primary considerations, two very conflicting and opposed issues.  The first explores:-

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

   but the second then is:-

   (b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

6. The additional considerations cover much of the same ground as those two primary considerations but raise a number of other issues that the Court needs to consider as well.  However, of significant importance to the two children in this case is as to the issue of violence that they have both experienced and witnessed.  The allegations as against the father are severe.  The allegations as against the mother in terms of her differing capacities at times in the care of the children are also serious. 

7. It is the application of Counsel for the father that any evidence that this Court considers, be confined to events since the final Orders were last made on 5 August 2005. I accept though that doing that would significantly hamper the Court in discharging its obligations under section 60CC (2) and principally the primary consideration of the need to protect these children from physical or psychological harm.

8. A reading of the Affidavits makes it plain that there were significant incidents and events prior to the making of those Orders in 2005 which the Court need and ought in properly discharging its duty, consider in reaching its final determination in these proceedings. I therefore dismiss the oral application made by the father’s Counsel today and indicate that all issues touching upon the matters that the Court needs to consider under section 60CC, both under the primary and additional considerations, are matters that this Court need properly explore.

I certify that the preceding eight (8) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  16 November 2009