SMALL & SMALL

[2013] FamCA 56

FAMILY COURT OF AUSTRALIA

SMALL & SMALL [2013] FamCA 56

FAMILY LAW - CHILDREN – interim orders – with whom a child spends time – where the mother seeks dismissal of the father’s application based upon the father’s discontinuance of two previous proceedings – where the mother alleges the father committed acts of domestic violence against her – where the mother expresses serious concerns about the children’s physical and mental health if the children were to spend time with the father – where the children are autistic – best interests – no orders for the children to spend time with the father pending trial.

Family Law Act 1975 (Cth) s 60CC.

APPLICANT: Mr Small

RESPONDENT: Ms Small

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 3193 of 2009

DATE DELIVERED: 31 January 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 31 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Atkinson

SOLICITOR FOR THE APPLICANT: Calderwood Atkinson

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHLDREN’S LAWYER Legal Services Commission of SA

Orders

Upon Noting the Independent Children’s Lawyer is requested to make arrangements to obtain appropriate reports from the children’s treating practitioners (such as the psychologists, psychiatrists or Autism medical professionals) and those matters would also be before the Court when any final decision is made in relation to any time that the children should spend with the father.

IT IS ORDERED THAT

1. The Court directs the subpoena from Families SA not be returned. 

1. Leave is given to the parties and their legal representatives to inspect and copy documents produced by Families SA (Schedule No. 3).

1. The Court directs that upon the matter being dealt with by the Registrar at the Directions Hearing before Registrar Paxton on 19 February 2013 at 3.30 pm the Registrar place the matter in the trial pool list making directions pursuant to section 62G(2) for a family assessment report to be prepared in the usual way for consideration at the final hearing of the matter.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Small & Small has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3193 of 2009

Mr Small

Applicant

And

Ms Small

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an interim application in proceedings which were commenced by the father in September 2012 and have been transferred from the Federal Magistrates Court to this Court.  The proceedings concern the welfare of two children of the parties C born … March 2004 and D born … May 2005. 

2. The father’s application is for an order that he spends time with the children every Sunday from 10.00 am till 5.00 pm and every Wednesday from 7.00 pm to 8.00 pm by telephone.  Those final orders are repeated as the orders sought by way of interim orders together with various injunctions sought. 

3. The mother opposed the orders and has filed a response to the initiating application.  The current situation is that the mother has sole parental responsibility for the children as a result of orders which were made before the dismissal of the previous proceedings. 

4. At the interim hearing before me this morning, the mother has sought the summary dismissal of the proceedings concerning the children based upon the history of previous proceedings and, in particular, the father discontinuing the proceedings on two separate occasions. 

5. The mother appears unrepresented this morning.  The father is not present but is represented by Mr Atkinson.  Mr Hemsley appears for the Independent Children’s Lawyer.

6. There are serious concerns for the welfare of the children, particularly in relation to issues of domestic violence and emotional and psychological abuse raised in the affidavit material before the Court.  Those have been previously referred to in earlier proceedings.  The father alleges in his affidavit that he discontinued the proceedings because he was confused and dispirited with progress in the likely time and cost to pursue time with the children.  He refers to his allegations that he had seen the children a number of times.  The father also alleges that the mother is refusing to permit him to spend time with the children due to financial reasons.

7. The mother’s affidavit filed in response is a long and detailed affidavit which sets out significant history of the matter including a history of allegations of serious domestic violence and risk to the children, both physically, emotionally and psychologically.  It also refers to the autism of the children and the help they have been given, both in relation to their schooling and psychological welfare. 

8. At this stage there is not a basis to dismiss the proceedings summarily as requested by the mother.  The Court needs to consider the welfare of the children and the impact the ongoing proceedings may have upon the mother and the children.  However, taking into account all of the matters before the Court, I am not in a position to summarily dismiss the matter this morning.

9. In relation to the question of interim orders, the main factor that has to be considered is what is in the best interests of the children.  The primary considerations are the need to protect the children from harm and to consider the benefit of the children of having a meaningful relationship with both of their parents. 

10. In this case it is significant that the mother’s material raises issues concerning the psychological and emotional welfare of the children and their special needs if there was an order made for even supervised time to be reinstated.

11. The Independent Children’s Lawyer’s counsel has requested that a Family Assessment report be prepared before consideration is given to making any orders for the reinstatement of the time spent between the father and the children.  In view of the history of the matter, I consider that approach also to be appropriate.  It is also significant that there are a number of difficulties in determining the facts upon which the other factors in section 60CC should be based, namely consideration of the attitude to the parties and the capacity of the parents to provide for the children.  It is significant that the mother’s material, which is yet to be tested, raises serious issues about the benefit, if any, that the children would have if the relationship with the father was renewed.  I therefore refuse to make any interim order.

12. I am making those orders on the basis that ongoing interim proceedings would seem to be of very little benefit to either the parties or the children and that the matter should be resolved by way of final orders as soon as possible in order to enable the Court to determine accurately what is in the best interests of the children. 

13. The Independent Children’s Lawyer is also requested, Mr Hemsley, to make arrangements to obtain appropriate reports from the children’s treating practitioners, such as the psychologists, psychiatrist or Autism medical professionals and those matters would then also be before the Court when any final decision is made in relation to any time that the children should spend with the father.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 31 January 2013.

Associate: 

Date:  12 February 2013