Sims and Hemming

[2007] FamCA 364

FAMILY COURT OF AUSTRALIA

SIMS & HEMMING [2007] FamCA 364

FAMILY LAW - CHILDREN - With whom a child lives - Interim orders

APPLICANT: MS SIMS

RESPONDENT: MR HEMMING

FILE NUMBER: HBF 558 of 2006

DATE DELIVERED: 5 April 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 5 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Christine Tilley

SOLICITOR FOR THE APPLICANT: Simmons Wolfhagen

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. THAT BY CONSENT the interests, in these proceedings, of the child, a daughter born in August 1995 (“[the child]”), be independently represented by a lawyer from a private practice (not from the Legal Aid Commission) and it is requested that Legal Aid Commission Tasmania arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Hobart.

2. THAT forthwith upon appointment by the said Tasmanian Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

3. THAT within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

4. THAT until 4.00pm on 4 June 2007 that neither party co-habit (in a romantic relationship) with another adult person in their principle residence or at times when either of the children the child or her sister born in November 2000 are living or spending time.

5. THAT neither party will discuss these proceedings in the presence or hearing of either child.

6. THAT without any admissions both parties are restrained from physically disciplining either or both of the children or permitting any other person to physically discipline either or both of the children.

7. THAT the child be returned today to the mother at the conclusion of these proceedings.

8. THAT pursuant to s.67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia to find and recover the child, the child, born in August 1995 and to deliver the said child to the mother forthwith.

9. THAT the operation of the recovery order as set out in order 8 above be suspended subject to the compliance with these orders and leave be given for the applicant mother to have the suspension of that order revoked on the giving of twenty four hours notice to the court and to the other party.

10. THAT the father will inform the child of the orders today and that will not be in breach of any orders of this court.

11. THAT UNTIL FURTHER ORDER the children spend time with the father from 5.00pm Thursday until 12.00 noon Saturday each alternate weekend, such time to commence Thursday 12 April 2007.

12. THAT these proceedings be adjourned to a Judicial Duty List at 4.00pm on Monday 4 June 2007.

    IT IS NOTED

13. THAT the father has indicated he will encourage the child to go with the mother notwithstanding his disagreement of these orders.

14. THAT order 1 of the orders made 4 December 2006 remains in place.

15. THAT order 4 of the orders made 4 December 2006 be vacated.

16. THAT the question of costs be reserved.

17. THAT pursuant to s.65DA(2) and s.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 DIRECTED

18. THAT a copy of the reasons for these orders be taken out and placed on the Court file.

    IT IS CERTIFIED

19. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 558 of 2006

MS SIMS

Applicant

And

MR HEMMING

Respondent

REASONS FOR JUDGMENT  

1. This is an application by the mother for orders against her former partner, the father, for a number of orders which were set out in her application filed 21 March 2007.

2. These include the appointment of an independent children's lawyer, a warrant and a recovery order.  She seeks an order for a psychiatrist to be appointed as a single expert and various other orders.

3. This is not the first time these proceedings have been before this court.  They came before this Court on 4 December 2006 and I made orders that the children, the child and her sister, live with the mother and that the father spend time with the children at a contact centre.  At that time an independent children's lawyer had been appointed.

4. The matter was resolved by terms of settlement signed in December 2006 and orders were made on 4 January 2007 where all outstanding applications were dismissed, and presumably the orders that were made 4 December 2006 remained in place.

5. The mother relied on two affidavits filed 21 March 2003 and 30 March 2003 and in that she deposes that subsequent to that time the parties entered into an arrangement where the children spent time with the father unsupervised.  She raises issues in those affidavits of the father engaging, in particular the child in the proceedings, and of continuing disharmony arising therefrom. 

6. It appears that the child ran away from the mother's home mid March 2007 and has lived with the father since that time.

7. The mother annexed to her second affidavit a report from Mr P which shows the impact that the conflict between these parents is having on the child where he observed:

   Under these circumstances any child is likely to feel emotionally vulnerable and out of their depth.

8. He goes on to say:

   Whether that decision reflects the position or view of one parent is irrelevant, as although the parent may support the position, the responsibility of making significant decisions such as where a child should live and which school a child should attend needs to be a parental decision.  Children are likely to be overwhelmed by the need to make those decisions and respond as [the child] has and tell different stories when trying to meet the needs of their parents rather than the parents meeting their children's needs.

9. He goes on to say: 

   Until these matters are resolved it's likely [the child] will continue to have ongoing difficulties.

10. The mother says this arises out of the father's interaction with the child.  The father’s evidence was, in part from the bar table, (he was sworn at the bar table) in terms of documents that were attached to the mother's affidavit and also a short affidavit filed by him.

11. He asserts a number of things, firstly, that the child was the subject of abuse by her mother, both physical and psychological; that she has boyfriends around in circumstances which upset the child; that the child has been assaulted, not only by the mother but people at her direction.

12. The mother seeks orders that the child be returned to her care and remain in her care until the matter comes back to this court on 4 June with the child spending one night a week, whether a Wednesday or Thursday night, with the father.

13. The father on the other hand seeks orders that the child remain with him and see her mother each weekend, although that would need, on his evidence, to be built up.

14. There is an issue between the parties as to which school the child attends.  The choice has been the school at which the father works or the school at S where the child’s sister attends and which the child has been attending until this changeover in March 2007.

15. The father urged on the court that the child be allowed into the hearing so that the court could take her views directly.  The court declined that request. 

16. When the matter came before this court on the last occasion when orders were made, an order was made that neither party will discuss these proceedings in the presence or hearing of the children.  That order has been dealt with in the breach more than the compliance it would appear.

17. There is an issue between the father and the Legal Aid practitioners who had previously been involved in this matter.  Of course they are not here to defend themselves and it ought not to end up being a dispute as between the father and the Legal Aid lawyers in this court as that is in some regards a side issue, whilst it is obviously of great importance to the father and no doubt the child.

18. By consent I will make an order appointing an independent children's lawyer but without reflecting or making any adverse findings with regard to Legal Aid.  I will invite Legal Aid to appoint a practitioner in private practice to act in that capacity.

19. By consent I will also make orders that neither party physically discipline either of the children. 

20. There is an issue as to whether the parties ought to discuss the proceedings with the children and the father argued that he ought to as that was the only way he thought the child could gain proper information.  I disagree with him.

21. There is in the material matters which are concerning and there is some evidence of lack of insight by the father with regard to his providing of information to the child which reflect on his ability and willingness to facilitate and encourage a close and continuing relationship between her and her mother which is of great concern.

22. In fairness he raises similar issues with regard to the mother which have not yet been determined, which if true would also fall in that area.  But I will be making an order that neither party discuss these proceedings with, or in the presence of the child.  It is the second time I have made that order.

23. I make it clear that I expect that order to be complied with.  If it is not complied with and it comes before me, I will take serious steps in relation to that non-compliance.  People may not like my decisions but I am here to make decisions and if I make orders, I expect them to be obeyed.

24. There is an issue as to which school, as I said, the child goes to.  I do not propose to change the interim order regarding parental responsibility for the reasons set out.  The child is fortunate at some levels, at many levels, that she has two parents who care deeply about her.  That is why they are both here today.  Sadly they are polarised in their views, but that is why they are here.

25. There is a benefit in the child having and continuing to have a meaningful relationship with both of her parents.  At the same time there is a need to protect her from physical or psychological harm as a consequence of the conflict between her respective parents and I have made no findings in that regard.  I would simply reflect on the material that is before me.

26. If the father is correct and the mother has abused the child to the extent that he alleges, I note it is of some concern that the state welfare authorities have sat on that complaint for so long.

27. The father describes himself as an emotional and passionate man.  As such it may well be that some of those concerns arise out of his passionate and significant concern with the child. 

28. I am obliged to take into account the views expressed by the child and I am satisfied that at the present time she would probably prefer to be with her father rather than her mother.  I have to give that some weight but not overwhelming weight.

29. Clearly both parents are physically able to care for the child.  It is the conflict and the emotional storm that rages around her as between the parents that is the problem and I have no significant tested evidence in that regard.

30. I have significant doubts about the willingness and ability of the father to facilitate the relationship between the child and her mother.  I have some concerns about the mother's willingness to do likewise with the father bearing in mind the conflict that exists between them.

31. The proposal of the father will separate the child from her sister and probably from the mother.  The parties live some distance, about 40 minutes, away.  I have made comments about the capacity of parents and their attitude to parenthood.

32. There are allegations of family violence which I have taken into account and considered in making these orders. 

33. The parties need time to reflect on where they are going and to take the child out of the conflict in which she has been thrust into the middle. 

34. I note the father said he will encourage the child to go with the mother, notwithstanding his disagreement with the orders.

I certify that the preceding 34 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate: 

Date:  5 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SIMS & HEMMING