Short & Trevilian (No. 3)

[2008] FamCA 262

FAMILY COURT OF AUSTRALIA

SHORT & TREVILIAN (NO. 3) [2008] FamCA 262

FAMILY LAW – CHILDREN – contempt and contravention application by the mother - mother seeking suspension of the father’s time spent with the eldest child – father not present at hearing - previous orders allowed father to spend time with the eldest child only when supervised by school staff - father admits to spending time with the child but states that it was consistent with terms of order – consideration of best interest of child in making urgent interim order - orders as to period of adjournment – in the best interests of the child not to spend any time with or have communication with the father

Family Law Act 1975 (Cth), ss 60CC

APPLICANT: Ms Short

RESPONDENT: Mr Trevilian

OTHER PARTY: Minister for Families and Communities

INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

FILE NUMBER: ADF 1855 of 2003

DATE DELIVERED: 2 April 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 2 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M.D. Berman

SOLICITOR FOR THE APPLICANT: Angela Ferdinandy

COUNSEL FOR THE RESPONDENT: Mr Childs

SOLICITOR FOR THE RESPONDENT: Tindall Gask Bentley

COUNSEL FOR THE OTHER PARTY: Mr M.J. Figwer

SOLICITOR FOR THE OTHER PARTY: Michael J.A. Figwer

Orders

1. The Contravention Application and the Contempt Application both filed today are to be listed for final hearing and determination as a reserve matter before any of the Judicial Officers listed for the Magellan hearings in the week of the 14 April 2008, estimated hearing time approximately two [2] days, if not reached the matter is to be listed before The Honourable Justice Dawe at 10.00 am on the 20 June 2008.

2. I adjourn the mother’s Application in a Case filed today to the 16 April 2008 at 9.00 am before The Honourable Justice Dawe.

3. During the period of the adjournment any orders concerning the father spending time with or communicating with the child S are suspended during the period of the adjournment.

4. During the period of the adjournment the husband is restrained and an injunction is granted restraining him from communicating with S by any means, spending any time with S in any way or from approaching or remaining within two hundred [200] metres of S.

5. The final application is listed to a 1^st day of trial or directions on the 28 July 2008 at 2.15 pm before The Honourable Justice Burr to make appropriate procedural orders for a long trial (whether before His Honour or a visiting Judicial Officer).

6. The questions of costs are reserved generally.

IT IS NOTED:  That the Minister will endeavour to arrange for Ms … or some other suitable person to communicate the terms of the orders to S as a matter of urgency and to provide such assistance to S as may be necessary.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1855 of 2003

MS SHORT 

Applicant

And

MR TREVILIAN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which comes on before me as a brief interim hearing because I heard the matter on 25 March and made certain orders.  Then the matter was brought back before me in unusual circumstances on 28 March.  On that date, I heard submissions in relation to orders concerning the amount of time and in what circumstances the father should spend with S and the other two children V and E.  I made certain orders.  Those orders included that, if the mother was to file and serve any application for the father to be dealt with for contravention or contempt, they were to be filed by 9 o'clock this morning, and any application in a case was to be adjourned to 9 o'clock this morning. 

2. By that time also the father was to file and serve an affidavit confirming his compliance with his undertaking and setting out the steps he had taken to comply with the undertakings and to ensure S’s continued residence as a boarder at S College.  There was a notation to that order which appears also in the sealed order, and that is:

   “Noting:  the father is warned that, if there is found to be a breach of Court orders of 25 March 2008 without reasonable excuse or a flagrant breach of those orders, which amounts to a contempt of Court, he faces serious consequences.”

3. Those orders were made in the context of the matter coming back before me with an allegation that the father had breached the orders of 25 March on 25 March concerning S’s ongoing enrolment at S College. The father was present on 28 March when I made those orders and on that occasion when I made certain firm remarks.

4. The father has filed his affidavit confirming that S is now enrolled as a boarder at S College. The mother has also filed applications to have the father dealt with for contempt and for contravention; the contempt application and contravention application dealing with allegations concerning the breaches of different parts of the orders in relation to the children made by this Court.  The mother has also filed and brought on before me urgently an application in a case in which she seeks that the orders made in March 2008 by me which continue the arrangement whereby the father could spend time with and communicate with S, be suspended until further order. 

5. The applications were apparently faxed to the husband's solicitors late yesterday afternoon. Counsel appearing before me first thing this morning, when the matter was first mentioned, had only just received those documents.  The matter was stood down while I attended to another matter.  When I resumed at approximately 11 o'clock the father was still not in attendance.  I heard some submissions from his counsel about an alleged misunderstanding by the father as to his need to be present today and advice that the father had apparently received from his solicitors that it was not necessary for him to attend today and that he was otherwise busy with work.

6. In these circumstances if the matter were not of serious concern, I would have adjourned the matter to enable the father to give instructions to his solicitor and prepare appropriate answering documents.  However, I indicated that I was intending to hear the matter on an urgent basis because of the seriousness of the allegations and the high level of concern for the welfare of the children, in particular the child S.  I stood the matter down again.  The father's counsel was good enough to seek to obtain some particular instructions on the matter.

7. When the matter resumed again the father's counsel indicated that the father wished that the orders of 25 March continue, which permit him to spend time with S and to have telephone communication with her.  The orders that I made on 25 March, so far as they relate to the orders concerning the father and S, were that the father was restrained and an injunction was granted restraining him from spending any time with or in the company of the child, save and except under the supervision of the staff of S College or during school holidays under the supervision of a suitable person agreed to by the mother, father and the independent children's lawyer, or from spending overnight occasions where S is sleeping or residing. 

8. I made no order restricting the telephone communication between the father and S on that occasion, and continued the orders of Burr J in paragraphs 6 to 12 inclusive of his Honour's orders of 12 February 2008.  Those orders relevantly provide that the father is to take steps to enrol S in S College as a boarder and provided that he be entitled to participate in any formal role he has with an Adelaide youth organisation for any organised functions, upon the condition that S is transported to and from such events by either Dr A or the paternal grandfather.

9. When the matter came on before me today, I had before me the applications for contravention and contempt, the application in a case and an affidavit of the mother, to which was annexed a report by private investigators, detailing observations of the father.  The report indicated that at times the father had attended on the Saturday and Sunday of the most recent weekend at S College and had spent some time there with S, playing tennis and refers to sitting on a seat with the child whilst the child ate some food. 

10. Mr Childs, after speaking to his client on the last occasion this morning, has said to the Court that the father admits that, as a matter of routine, he has been attending S College at 7 pm of an evening to practise tennis with S.  The father says that the tennis courts would be visible from a window of the S College buildings, such that the staff could see from that window to the tennis court.  Mr Childs indicated that the father acknowledges that he played tennis with S on Saturday and Sunday of the most recent weekend, and did so on the basis that the tennis courts were visible from a room which was used by staff at S College.

11. On an urgent interim hearing basis.  I need to turn my attention to the provisions of the Act which require me to consider what is in the best interests of the child.  This is a very unusual matter in relation to the allegations made and, indeed, the facts admitted - namely, that the father has been playing tennis with S on a regular basis and, in particular, last Saturday and Sunday, after attending Court when I made firm remarks about complying with orders of the Court and after the Court was told that the father had conferred with his legal advisers about the need to comply with orders of the Court. 

12. Today I must decide what order is appropriate during the period of the adjournment, being an adjournment which would give the father an opportunity to come before the Court and provide his side of the story and put full submissions when his legal advisers have had the opportunity to take instructions and prepare the matter more fully.  The Act is quite clear that, when deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. 

13. In this case, the primary considerations loom large;  namely the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  In relation to the question of meaningful relationship, one of the serious matters to be determined by the Court in any final hearing is the capacity of the mother to have a meaningful relationship with S, bearing in mind the allegations which are made concerning the influence of the father upon that relationship between S and the mother.  In relation to the benefit of the child of having a meaningful relationship with her father, I have to weigh that up and give it significant consideration as a primary consideration. 

14. I also have to take into account the additional considerations in section 60CC(3). One which is significant here is the views expressed by the child and the factors which are relevant to the weight should be given to the child's views. In previous hearings, it has been asserted that S has strong views about maintaining time spent with her father and the relationship with her father and she is opposed to spending time with or maintaining a relationship of any significance with her mother.

15. In relation to paragraphs (b) and (c) (which relate to the nature of the relationship and the willingness and ability of the child's parents to facilitate and encourage a close and continuing relationship between the child) those are matters which also are significant.  The determination of each party's role in creating the relationship with the other parent and the willingness of the parent to facilitate and encourage that relationship are matters which will have to be finally determined when all of the evidence has been heard and tested.

16. In relation to the likely effect of any changes in the child's circumstances, I accept that, even on a short‑term basis, if S is restricted from contacting her father and spending time with him, she may react unfavourably to that news.  However, that is one of the factors which I have to weigh.

17. (e) practical difficulty is not relevant nor is (h). 

18. One of the most significant matters, in my view, is subsection (i), which is "the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents".  This and subsection (m), ("any other fact or circumstance that the Court thinks is relevant") raise clearly before me the need to ensure that S is aware that it is a responsibility of a parent to take steps to undertake and, at all times, to comply with orders of this Court. 

19. If the father's interpretation is that he believes that playing tennis with her last Saturday and Sunday was in accordance with the orders of the Court because it was supervised, this raises a serious question about the father's intellectual, psychological and emotional capacity.

20. Taking all factors into account I do not consider it to be in S’s best interest, during the period of the adjournment, to spend any time with or have any communication with the father. 

21. These views will, of course, be subject to reconsideration when I have heard further evidence from the father, but in the meantime the matters are of such serious significance concerning his behaviour that, until such time as he has satisfactorily answered the allegations and, bearing in mind the admissions made on his behalf by his counsel this morning, the concerns about S’s welfare are overriding.

22. I do not propose to issue a warrant for the arrest of the husband, as requested in the mother's application, bearing in mind that I am dealing with this on the basis of an urgent order adjourning it for the father to have an opportunity to present his case and to allow him procedural fairness. 

23. I am adjourning the mother's application in a case to 16 April at 9.00 am before me.  I have previously listed the contempt and contravention applications for the week of 14 April and, if it is not reached, then before me on 20 June at 10.00 am. 

24. I am informed that I can give this matter a first day hearing, either by way of first day of trial or a procedural hearing before Burr J on 28 July at 2.15, and that either his Honour will thereafter have time to hear this matter as a long case or he will make appropriate procedural orders with a view to having a visiting judicial officer hear the matter.  It is unlikely that it will be either myself or Strickland J.  I do not yet consider myself to be disqualified but it may be if I hear the contravention and contempt applications that might require reconsideration.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  16 April 2008