Short & Trevilian (No. 4)

[2008] FamCA 273

FAMILY COURT OF AUSTRALIA

SHORT & TREVILIAN (NO. 4) [2008] FamCA 273

FAMILY LAW – CHILDREN – contempt and contravention application by the mother – adjourned from earlier date – during the period of the adjournment, for same reasons as for judgment on last adjourned date, in the best interests of the children for orders for the father to communicate with or spend time with any of the children to remain suspended.

FAMILY LAW – PRACTICE AND PROCEDURE - father ceased to be represented by solicitors during the adjournment and has not filed any documents – further adjournment

Family Law Act 1975 (Cth), ss 60CC

APPLICANT: Ms Short

RESPONDENT: Mr Trevilian

OTHER PARTY: Department for Families and Communities

INDEPENDENT CHILDREN’S LAWYER: Ms J Cocks

FILE NUMBER: ADF 1855 of 2003

DATE DELIVERED: 16 April 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 16 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.M. Berman

SOLICITOR FOR THE APPLICANT: Angela Ferdinandy

COUNSEL FOR THE RESPONDENT: In person

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

SOLICITOR FOR THE OTHER PARTY:

Michael J A Figwer

COUNSEL FOR THE INDPENDENT

CHILDREN’S LAWYER:

Ms Cocks

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Judith Cocks

Orders

1. The time for the father to file and serve a Response to the Application for Final Orders is extended to 4pm on the 21 April 2008.

1. The time for the father to file and serve a Response to an Application in a Case filed by the mother on the 2 April 2008 and any affidavit material upon which the father seeks to rely in relation to that application is extended to 4pm on the 21 April 2008.

1. The father file and serve a Notice of Address for Service by 4pm on the 21 April 2008.

IT IS ORDERED DURING THE PERIOD OF THE ADJOURNMENT THAT

1. Paragraphs 3 and 4 of the order of 2 April 2008 do continue.

1. That further consideration of the Application in a Case (document 199) be adjourned before The Honourable Justice Dawe on Wednesday, the 23 April 2008 at 9am.

IT IS NOTED that publication of this judgment under the pseudonym Short & 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 matter is the adjourned date of a matter that was filed on 2 April 2008 and, in the urgent circumstances that existed, dealt with by me on that day in the absence of the father.  He was represented on that occasion by counsel Mr Childs, who was given the opportunity to obtain instructions on the telephone from the father.

2. On the occasion of 2 April 2008 I made orders during the period of the adjournment and adjourned the application in the case to this morning at 9 am.

3. During the period of the adjournment it appears the husband has ceased to be represented by his solicitors and appears before me today unrepresented.  He has not filed any response to the application in a case filed by the wife on 2 April 2008, nor has he filed any affidavit setting out the evidence upon which he would rely in opposing the orders sought by the mother.  I have therefore granted a further adjournment of the matter to 23 April 2008 at 9 am and directed the father's answering documents to be filed and served by 4 pm on 21 April 2008.

4. What remains to be determined is what orders should be made during the period of the adjournment; that is, from now until 23 April.  The issues to be determined specifically relate to the welfare of the three children of the relationship.  Some of the orders in particular relate to the eldest child S, who will be 16 in July this year. V was born in June 1994 and is therefore approaching 14.  E was born in June 1998 and is nine, going on 10.

5. The material presented to me on the last occasion related to events which occurred following the hearing of the matter by me on both 25 March and 28 March.  The circumstances in which those matters came before me are relevant but I do not repeat them in these reasons.

6. What I have to determine on any occasion when making orders in relation to children, whether they be interim orders or final orders, is what is in the best interests of the children, bearing in mind the provisions of the Family Law Act and in particular the provisions of section 60CC.

7. This is a matter where the serious issues to be determined clearly set the matter outside the group of cases where there is a presumption that shared parenting should apply.  It is also a matter where the particular facts of the case which relate to the emotional welfare of all three children also set it outside those cases where there is any presumption that there should be any equal time or substantial time.

8. The factors which have to be determined relate to the emotional wellbeing of all three children and the emphasis which is placed upon the need to maintain meaningful relationships with both parents in the Family Law Act. At the same time I emphasise the need to protect the children from harm, which includes emotional and psychological harm.

9. The matters which are in dispute in this matter are at extremes.  It is alleged that the eldest child S is estranged from her mother as a result of the influence of her father.  It is alleged by the father that the mother has taken steps to prevent a relationship between him and the children, for various reasons.  These are difficult matters to be determined at a final hearing.

10. There were orders made on previous occasions for time to be spent with the children to be under certain conditions of supervision.  There is now an issue as to the understanding of the father as to what those orders meant.  That will be a matter which is to be dealt with appropriately when the contravention and contempt proceedings are resolved.

11. In the meantime, the court is left with the difficulty of assessing what is in the best interests of these children on a temporary basis pending the further hearing of the matter on 23 April.

12. I have received as an exhibit a letter from the principal of S College, which clearly expresses concern in particular about V, and indeed about all children.  It indicates that the staff are particularly concerned about the protracted period of court intervention and deliberation about the emotional and mental wellbeing of all three girls, but particularly S and V.  The letter refers to serious concerns about S taking matters into her own hands and V discussing suicide.  These are serious matters, which no doubt the parties, Independent Children's Lawyer and representative of the Minister will take into account and ensure that the children are cared for appropriately.

13. It is not clear from the evidence before me that I am able to determine whether the emotional distress of the children, in particular S and V, is caused by the ongoing high‑level conflict between the parents, (who are the persons who are meant to be responsible for their welfare) or whether it is caused by one or other of the parents alone.  It is not possible to make that decision at the moment.

14. The pressing need is to protect the welfare of the children.  I refer to my reasons for judgment on 2 April 2008 and, for the reasons discussed therein, it is in the best interests of all three children that the orders providing for the father to have communication with or time spent with any of the children should remain suspended during the period of the adjournment.

I certify that the preceding fourteen (14)) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  18 April 2008