OCKENDEN & OCKENDEN

[2015] FamCA 271

FAMILY COURT OF AUSTRALIA

OCKENDEN & OCKENDEN [2015] FamCA 271

FAMILY LAW – CHILDREN – Interim Orders - father previously sought orders that would enable him to spend time with the child during the period of adjournment – application opposed by mother – allegations of serious family violence – criminal proceedings against father discontinued – father denies allegations – no orders made for father to spend time with the child.

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Ockenden

RESPONDENT: Ms Ockenden

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of Sa

FILE NUMBER: ADC 4442 of 2013

DATE DELIVERED: 2 April 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 2 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Carlin

SOLICITOR FOR THE APPLICANT: Carlin Lawyers

COUNSEL FOR THE RESPONDENT: Ms Lewis

SOLICITOR FOR THE RESPONDENT: Lindbloms Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Ms Horvat
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Legal Services Commission of South Australia

Orders

1. The Case Application for interim orders filed by the father on 1 October 2014 is dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ockenden & Ockenden 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 4442 of 2013

Mr Ockenden

Applicant

And

Ms Ockenden

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the hearing on an interim basis of the father’s application to spend time with the child, B, who was born in 2010 and is, therefore, about to turn 5.  It appears from the material before the Court today it is agreed that the father has not spent any time with the child since April 2013.  A significant part of the child’s life has, therefore, taken place without the father having contact with the child.  There are significant matters in dispute which would need to be determined before the Court can appropriately determine what is in the best interests of this young child.

2. There are very serious allegations that have been made as part of the mother's case in relation to the family violence and allegations made concerning the alleged abuse by the father of the child and the mother’s other child, C. 

3. The criminal proceedings against the father in relation to the child have been discontinued.  The proceedings in relation to C remain open, but it is not clear whether the DPP are going to proceed with those serious charges or not. 

4. There are also allegations made by the mother about the suitability of the father to spend time with the child based upon allegations of other abuse concerning herself and unsuitability of the father due to his past behaviour.

5. These are all strongly denied by the father.  He seeks to have interim time with the child, quite appropriately, at the Child Contact Centre supervised pending the resolution of these matters. 

6. The submissions I have received this morning emphasise that the father has been seeking to spend time with the child for a considerable period of time and the criminal proceedings in relation to the child have now been resolved in that there is no prosecution proceeding.  The difficulty for this Court, however, is that even on an interim basis the Court has to consider, in accordance with the authority of Goode & Goode (2006) FLC 93-286, what is in the best interests of the child doing what it can with the evidence that is before it and taking into account the need to ensure that the best interests of the child is the paramount consideration.

7. When taking into account the matters set out in s 60CC the primary considerations are the need to ensure that the child is protected, but at the same time also to consider the benefit to the child of having a meaningful relationship with both of the child’s parents.  In this case, because of the serious allegations made in relation to the suitability of the father to spend time with the child and the difficulty in resolving those matters whilst the criminal proceedings remain outstanding, I am not satisfied that, at this stage, it is in the best interests of the child for even supervised time to be ordered to take place.

8. I do that taking into account the history of the matter and, in particular, the child’s age.  She has not seen the father for some two years now.  I take into account the disruption for her and the family if supervised time were to take place.  It is not only her physical welfare, which would obviously need to be protected at a Children’s Contact Centre.  Her emotional and psychological welfare may also be at risk.

9. I am making no findings as to the truth of those allegations and, indeed, once the matter is listed for final hearing (and if it is determined that there is no truth to those allegations) then the mother and child will be put in a place where serious steps will have to be taken to overcome the difficulties which appear to have been created for the child.  Those matters are matters which will have to be determined when the Court has heard proper evidence.

10. The matter is listed before the Registrar for 5 May 2015 for directions.  If at that time there is a resolution of the criminal proceedings the Registrar can take steps to list the matter for trial before this Court with the usual processes being undertaken in relation to the preparation of an appropriate family assessment report. 

11. This Court will have to hear all of the relevant evidence in determining what is in the best interests of the child, whether or not the criminal proceedings against the father are discontinued.

I certify that the preceding eleven (11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 2 April 2015.

Associate: 

Date:  17 April 2015