Purdy & Denny

[2009] FamCA 762

FAMILY COURT OF AUSTRALIA

PURDY & DENNY [2009] FamCA 762

FAMILY LAW – CHILDREN – Magellan – interim orders – best interests of the children – where an interim assessment report has been prepared by the Department for Families and Communities – current orders to continue during the period of the adjournment

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Purdy

RESPONDENT: Mr Denny

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 3567 of 2007

DATE DELIVERED: 17 August 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 17 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Parker

SOLICITOR FOR THE APPLICANT: NORMAN WATERHOUSE LAWYERS

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Bowler

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER LEGAL SERVICES COMMISSION OF SA

Orders

1. Each of the parties file and serve by the 8 September 2009 affidavits of any further evidence that they want to rely upon on the next occasion

2. The matter is adjourned to 10.00 am on the 15 September 2009 in the Magellan Directions List before the Honourable Justice Burr.

3. During the period of the adjournment the orders made on 26 June 2009 do continue.

4. IT IS DIRECTED the father annexe Exhibit 1 (facsimile from child N’s Student Counsellor, Mr G at M High School) to an affidavit and file and serve within seven [7] days from today AND IT IS FURTHER DIRECTED the father to give photocopies to counsel in attendance this morning of the email contained in Exhibit 1.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3567 of 2007

MS PURDY

Applicant

And

MR DENNY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter has been before the Court on a considerable number of times in the Magellan list before His Honour Justice Burr on numerous occasions this year.  I have the advantage of the reasons of His Honour Justice Burr of 26 June 2009 when he made certain orders in relation to the children and adjourned the matter to me today.  The notations for His Honour’s order of 26 June 2009 were that counsel for the Minister indicated that there would be a detailed review of the circumstances of the family and, if possible, beneficial outcomes for the children to be undertaken by the Department for Families and Communities – Families SA, that the parties have agreed to the process and provided necessary consents to the department to contact all relevant organisations, schools and the like, and agreement of the parties as to what is appropriate in the interim;  the parties propose to enter into the process of alternate dispute resolution, subject to the conditions attached to the mother’s suspended sentence;  the father will use his best endeavours to encourage the child S to spend time with the mother. 

2. I have not been given any information today, which indicates that there has been any progress made in relation to the parties attending any alternative dispute resolution process or how, if at all, the mother’s suspended sentence conditions may have affected that.  I have received the interim report of the department from counsel for the Minister.  This is a detailed report of approximately 10 pages, which sets out the steps which have been taken, including interviews with the parties and the younger children and some other persons regularly in contact with the children.

3. There are further steps to be undertaken before that report can be completed.  What needs to be determined today is what orders might be made in the period of the adjournment that would be in the best interests of the four children. 

4. I note that the orders, specifically in relation to the four children spending time with the mother, provided that they spend the time from 10.00 am to 5.00 pm on each weekend on Sunday and that the time N and S spend with the mother be subject to their wishes.  There are then certain orders and injunctions specifically preventing the parties from discussing these proceedings or any criminal proceedings in relation to the father in the presence of or within the hearing of the children, or allowing anyone else to do so, or showing the children any documents relating to the proceedings.

5. There is also an injunction that the mother ensures that the children are at no time left alone with her current partner, Mr Purdy, during any period when the said children are in her care.  There are specific orders made in relation to handover and other matters. 

6. Having read the reasons of His Honour Justice Burr, I note that he gave careful consideration to all of the material that was then before the Court and in particular noted the unfortunate history of the involvement of the children in various forms of litigation. 

7. When dealing with the question of what orders which might apply in the interim, pending the report, I consider that the most significant factors are the primary considerations in section 60CC, encouraging the children to have a meaningful relationship with each of their parents.

8. Such a criterion, of course, is always subject to the need to protect the children from any form of abuse and that would include psychological or emotional abuse. 

9. The other significant factors in section 60CC (which are additional considerations) include the wishes of the children and the capacity of the parties to provide for the needs of the children. To that extent the Independent Children’s Lawyer’s counsel has this morning referred me to sections in the Interim Assessment Report which indicate that up until the time of at least the interviews with the younger children, there was no concern expressed by the report writer which would require a reduction in or placement of conditions upon the time the children spend with the mother, other than the conditions which already exist; namely, that N and S’s wishes determine the time they spend with the mother, and that Mr Purdy not be present.

10. I have considered the other factors, but primarily I am convinced that in the short period of time, whilst the Minister completes the report and there is a resolution of the father’s criminal proceedings, that it is in the best interests of the four children that the orders of 26 June 2009 continue during the period of the adjournment. 

11. I have made the orders for the filing of further documents and for the interim assessment report to be placed on the file officially.  I therefore adjourn the matter to His Honour Justice Burr at 10.00 am on 15 September 2009, and order that during the period of adjournment the orders of 26 June 2009 continue.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  20 August 2009