NORRIS & TRAVIS

[2009] FamCA 1032

FAMILY COURT OF AUSTRALIA

NORRIS & TRAVIS [2009] FamCA 1032

FAMILY LAW – CHILDREN – with whom a child spends time – interim proceedings – application by the father seeking to vary interim parenting orders – best interests of the children – where the father seeks overnight time with the children – where the mother opposes the introduction of overnight time – where there are allegations concerning the capacity of the father to provide appropriate care for the children and appropriate supervision – not in the children’s best interest to increase the time spent with the father pending trial

FAMILY LAW – PRACTICE AND PROCEDURE – property settlement proceedings – single expert

Family Law Act 1975 (Cth) ss 60CC & 65DAA

Goode and Goode (2006) FLC 93-286

APPLICANT: Mr Norris

RESPONDENT: Ms Travis

FILE NUMBER: ADC 1734 of 2008

DATE DELIVERED: 22 October 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 22 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Du Barry

SOLICITOR FOR THE APPLICANT: S J McKinnon & Associates

COUNSEL FOR THE RESPONDENT: Mr Tredrea

SOLICITOR FOR THE RESPONDENT: Adelaide Family Law

Orders

1. I order that subject to the directions of the Trial Judge the requirement for a single expert to be appointed to give evidence in relation to the value of each of the health and medical businesses is dispensed with.

2. I dismiss the father’s Case Application filed on the 24 September 2009.

3. I refer the question of costs of the wife’s attendance today for determination by the Trial Judge.

Noting that the matter is listed for a directions hearing before a Registrar to prepare it for a 1^st day of trial in the immediate future.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1734 of 2008

MR NORRIS

Applicant

And

MS TRAVIS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application by way of an Application in a Case seeking variation to the interim orders in relation to the children of the parties. The children concerned are G who was born in August 2006 and is therefore aged three, and M who was born in February 2005 and is therefore aged four.  Arrangements have been in place whereby the children live with the mother and spend time with the father.

2. The proceedings in the Federal Magistrates Court commenced in May 2008, when the mother started proceedings seeking orders by way of property settlement.

3. The father responded seeking other orders in relation to financial matters and seeking orders in relation to the children.  In his response to the initiating application, the father sought that the children live with the mother and that he spend time with the children as can be agreed between the parties and, failing agreement, from 9.00 am Friday until 9.00 am Monday each week, and on other special occasions and school holidays. 

4. An order was made in the Federal Magistrates Court on 3 November 2008 which provided for G and M to live with the mother and spend time with the father from 9.00 am to 6.00 pm each Friday and on alternate Sundays.

5. That order of November 2008 is the order which is still in force.

6. My understanding is the matter proceeded before the Federal Magistrates Court but was earlier this year transferred to this Court. Attempts have been made by the registrars of this Court to prepare the matter for a first day hearing to finalise both the property settlement proceedings and the children’s proceedings.

7. When the matter was in the Federal Magistrates Court, the Court received a family assessment report prepared by Dr C in February of this year.  That report is before me annexed to the affidavit of the husband’s solicitors (document number 10).

8. There has been an exchange of allegations in the papers concerning the capacity of the father to provide appropriate care for the children during his time spent with them, his capacity to provide appropriate supervision of both of the children and to attend to the special needs of the youngest child, G. These are disputed by the father.  He asserts that there is no proper reason why he should not spend overnight time and extended time with both of the children.

9. There has also been some involvement with Families SA in relation to investigations arising out of reports made to the department concerning risks to the children.  In particular, allegations made by M concerning the involvement with a child by the name of K and incidents which M asserts to her mother have happened, whilst she has been in the care of the father. 

10. The large number of documents annexed to the father’s affidavit filed on 24 September 2009 include copies of Families SA continuation sheets and reports concerning those matters.

11. The conclusion in those reports is that the abuse has not been confirmed. Significantly, the report of Dr C in February 2009 recommended a gradual increase of the time spent with the father and the children, including an introduction of overnight time. Since then, of course, the orders of November 2008 have continued. 

12. It is, however, noteworthy that there have continued to be further statements alleged by the mother to have been made by M about the alleged inappropriate behaviour and, in some cases, assaults upon M by K.  There have been ongoing concerns expressed by the mother since the report of Dr C about the father’s ability to assist in monitoring the health concerns in relation to the child G.

13. The Court is therefore faced with children of a young age in the care of the mother who has expressed considerable and ongoing concerns about the father’s capacity to provide for the appropriate care of both children, which is the basis for her opposition to an introduction of time spent overnight with the father. 

14. We also have a position where the father strongly denies any basis upon which there should be any concern.

15. This is an interim application and the Court is therefore faced with documents asserting two completely different situations.  One where the mother expresses concerns based upon her observation and remarks made by the children, the other by the father based upon his observations and care of the children.

16. Even though this is an interim application, the decision of Goode and Goode (2006) FLC 93-286 requires the Court to make a decision which is in the best interests of the children based upon the evidence that it has before it. In that regard, I am obliged to consider the matters set out in section 60CC which directs the Court in determining what is in the best interests of the children.

17. The provisions of Part VII of the Family Law Act1975 (Cth) also require the Court to consider whether a child should spend equal time or substantial and significant time with each of the children’s parents, and, in particular, section 65DAA.

18. The question, however, remains what is in the best interests of the children, taking into account the difficulty the Court has in determining on an interim basis what is the truth of the allegations. 

19. The mother has maintained consistently the concerns she has in relation to the supervision of M and the interaction with a person called “K”. 

20. She has also maintained her ongoing concerns about the impact of the father’s alleged behaviour on the health issues concerning G.

21. I take into account therefore the specific provisions of section 60CC, and note that one of the primary considerations is the benefit to the children of having a meaningful relationship with both parents.  There are significant factors in relation to the protection of the child M, whether it be from alleged interference by a person called K, or whether it is an emotional or psychological difficulty in relation to the children brought about by the parents or one or both of the parents’ behaviour.

22. I am also concerned about the need to protect the relationship between the children and the mother.  In particular, M is reporting to the mother incidents which should be of concern if they were true, and the mother is attempting to protect the child.

23. Taking into account therefore that these matters will have to be tested by way of final hearing (when all of the evidence can be considered and appropriate findings being made in relation to the facts) I have weighed up the factors under section 60CC carefully and consider that notwithstanding the comments of Dr C and the lack of specific findings in relation to Families SA reports, that it is not in the best interests of G or M to increase the period of time spent, pending the trial of this matter.

24. In relation to the appointment of single experts to value the health business and the medical practice carried on by the parties in this matter, the Court is informed that the parties are apparently agreed that they do not wish to go to the cost of a single expert in obtaining values of each of those businesses, bearing in mind that this matter comes from the Federal Magistrates Court where the same rules in relation to single experts do not apply. 

25. If I were to be the judge hearing this matter by way of trial, I would accede to that request provided certain conditions were undertaken in relation to clarification of matters in dispute before the conclusion of the trial.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  2 November 2009