Roberts and Mansfield

[2008] FamCA 517

FAMILY COURT OF AUSTRALIA

ROBERTS & MANSFIELD [2008] FamCA 517

FAMILY LAW – CHILDREN – with whom a child should live – allegations of domestic violence against the father – child very young - father seeking week and week about care arrangement for the child – opposed by the mother – no affidavit before court from father regarding current living and work arrangements - in the best interests of the child to see the father on an interim basis.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Roberts

RESPONDENT: Ms Mansfield

FILE NUMBER: ADC 1639 of 2008

DATE DELIVERED: 29 May 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 29 May 2008

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Charman

SOLICITOR FOR THE RESPONDENT: Ian Charman & Associates

Orders

1. That during the period of the adjournment the child … born on … December 2006 live with the mother.

2. That during the period of the adjournment the said child spend time with the father from 10:00am on each Monday until 9:00am on the following Wednesday UPON THE FOLLOWING CONDITIONS:

   2.1that the father reside with the child at M Street, R;

   2.2    that the father does not engage in any form of employment at any time that the child is spending time with him and that he be available on a full time basis to care for the child;

   2.3   that handovers take place at the M Child Care Centre upon the following basis:

   2.3.1the mother deliver the said child to that centre at 9:00am on each Monday and the father collect the child from that centre at 10:00am;

   2.3.2on the following Wednesday the father deliver the child to that centre at 9:00am and the mother collect the child thereafter from that centre at a time she determines.

   2.4that the father meet all of the costs in relation to handovers.

3. The father file and serve an affidavit detailing his living arrangements, his employment, and his proposals for the care of the child when she is spending time with him.

4. Pursuant to Section 68L of the Family Law Act 1975 as amended the child … born on … December 2006 be separately represented and that such representation be arranged by the Legal Services Commission of South Australia and that to expedite the appointment of the Independent Child’s Lawyer, within seven [7] days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party.

5. Further consideration of all applications and responses be adjourned to 9:30am on Monday 23 June 2008 before the Honourable Justice Strickland.

6. Pursuant to section 65DA (2) and section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1639/2008

MR ROBERTS

Applicant

And

MS MANSFIELD

Respondent

EX TEMPORE REASONS

1. I have before me an Application in a Case filed by the father on 28 April 2008 seeking orders in relation to the one child of this relationship.  There is a Response filed by the mother on 26 May 2008.

2. I am not going to repeat any or indeed much of the history of this matter save and except to say that the child, who is very young, not yet 18 months old, is currently living with the mother.  These parties separated either towards the end of last year or early this year. 

3. There are serious allegations of domestic violence that have been made by the mother.  Those allegations, as I understand it, are denied by the father.  There are ongoing proceedings in the Magistrates Court.  The mother has applied for a Domestic Violence Restraining Order and there has been an interim order made.  The father though is opposing that order and as I understand it, that matter is set for hearing sometime in July this year.

4. The father has not seen the child, the subject of these proceedings, since sometime in February and there are a number of reasons for that which include the ongoing proceedings in the Magistrates Court, the misunderstanding as it turns out by the father that he could not initiate proceedings in this Court until there had been mediation or until the parties had been to, for example, a Family Dispute Resolution Practitioner, and a delay in the provision of legal aid to the mother. 

5. In any event, I am not going to dwell on that.  The father has now made his application.  He has not seen the child since February.  The mother, for her part, has been concerned and continues to be concerned about the father’s ability to care for the child.  There has been no information provided at least to the Court until now as to where the father was living and what arrangements he could make for the care of the child given his work commitments, and in particular in relation to a business that the parties operated prior to the separation and the father has continued to operate since. 

6. The mother’s concerns arise from the fact that, as I understand it, the father was living at his place of business and had his two children by another relationship living there as well.  If that had continued there is clearly no basis for allowing him to have the care of the child, the subject of these proceedings, overnight at least. 

7. The father seeks extensive orders in relation to the child.  Just turning to the application specifically, in effect he seeks that there be a week and week about arrangement, namely, a shared living arrangement for this young child.  He says that prior to February 2008 he had played an integral and equal part in caring for and raising this young child.  However, the mother does not agree with that in her documents and thus that is another area of dispute between them, apart from the issue of domestic violence.

8. The mother opposes the orders sought by the father.  She does not say though, and her counsel has confirmed this today, that she opposes all time to be spent between the child and the father.  She says she has not been in a position to frame a proposal because of her lack of knowledge of the father’s circumstances and her concern particularly of his ability to care for the child.

9. I am faced with a position now where the father obviously pursues his application.  The mother opposes it.  There are serious allegations that are made, there are significant factual disputes, none of which I can resolve in a hearing like this.  My concern today is to make an order which is in the best interests of the child.  I am concerned that the father has not yet put before the Court in an affidavit his current and his future circumstances in relation to his living arrangements and his work arrangements.  In my view that has to happen before this matter can be advanced.  However, on the basis that what the father has put to me from the bar table is correct in terms of his living arrangements and his work arrangements, I am prepared to make an order today on an interim basis for the child to see her father including overnight. 

10. It is not an order that the mother wants. The mother’s position is that she still has concerns about the father and his ability to care and she opposes any overnight time. However, trying to take a middle ground, if you like, between the parties’ respective allegations and denials of those allegations, and taking into account the relevant factors under Section 60CC of the Family Law Act1975, the child should spend time with the father on the basis that he is not working at night and that he has a suitable place to live and have the child overnight.  I do not immediately see any concerns about that on an interim basis for a short period of time.  I want though to have an Independent Children’s Lawyer involved in this case because of the serious nature of the allegations that the mother makes.

I certify that the preceding 10 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 29 May 2008.

Associate