Stanley and Ayreton

[2011] FamCA 489

FAMILY COURT OF AUSTRALIA

STANLEY & AYRETON [2011] FamCA 489

FAMILY LAW - CHILDREN – interim orders – where the father seeks that the mother’s time with the child be suspended – where the mother has refused to comply with orders that she provide further information about her new partner – best interests – orders that the mother be restrained from permitting her partner from spending unsupervised time with the child.

Family Law Act 1975 (Cth)

APPLICANT: Mr Stanley

RESPONDENT: Ms Ayreton

INDEPENDENT CHILDREN’S LAWYER: Adey Lawyers

FILE NUMBER: ADC 25 of 2008

DATE DELIVERED: 17 June 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 17 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Berman SC
SOLICITOR FOR THE APPLICANT:	Georgiadis Lawyers

COUNSEL FOR THE RESPONDENT:	Not applicable
SOLICITOR FOR THE RESPONDENT:	No appearance by the mother

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mrs Tinning
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Adey Lawyers

Orders

UPON NOTING:-

(a)the appearance today, as a matter of courtesy, by Mrs Lindsay who to this date has been Counsel for the mother in these proceedings;

(b)the intimation of Mrs Lindsay that she seeks leave to withdraw on the basis that the mother refuses to comply with paragraph 3 of the Orders made on 20 May 2011 in terms of the provision of the detail in respect of the person known as “Y”, save as to his full name

(c)that there is no personal attendance by the mother today and she could not be reached by the Court on her mobile telephone number;

IT IS ORDERED THAT:-

1. Leave is granted to Mrs Lindsay to withdraw in these proceedings.

2. The proceedings be listed for further mention and directions before the Honourable Justice Burr at 9.30 am on Wednesday 22 June 2011.

3. The mother attend in person or by legal representative on the adjourned date (9.30 am on Wednesday 22 June 2011) and in the event that she fails to do so, the Court may be inclined to make default orders in her absence.

AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT, THAT:-

1. The mother is restrained and an injunction is hereby granted restraining the mother from permitting the person known as “Y” to spend any unsupervised period of time in the presence of the child D born … September 2006.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 25 of 2008

Mr Stanley

Applicant

And

Ms Ayreton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The matter before me today returns on a mention / directions basis after many days of trial conducted over various stages.  On 20 May 2011, the last day upon which the trial proceedings were conducted, I adjourned the matter to today for mention and directions, with the continuation / conclusion of the trial to resume part-heard before me on 19 and 20 July 2011.  I further made Orders on 20 May 2011 (in paragraph 3) requiring the mother to provide detail as to the person referred to in the proceedings as “Y”, given her evidence that she was in a relationship with him.  It was quite apparent from the evidence that had been given in the trial to date that it was important to know a lot more about “Y” given that he was playing a significant role in relation to the care of the child, the subject of these proceedings, (“D”) who was born in September 2006.

2. Given the mother’s refusal to comply with those Orders and her non-appearance today, despite her knowledge of today’s mention date, Mr Berman SC for the father urged me to suspend the present orders which permit the mother to spend time with D.  An order of that nature is not made simply to punish the mother for non-compliance with Orders of the Court, but must be based on what represents the best interests of the child who is the subject of these proceedings. 

3. There has been a good deal of evidence given and taken in these proceedings which, on a preliminary level, raises various concerns as to the parenting of both parties to these proceedings.  The role of the mother in D’s life is, and has been for a time now, significantly endorsed by the two Family Consultants who have prepared Family Reports in these proceedings.  The first of those reports is dated 12 March 2009 and in that report Ms N recommended, among other things, that D spend equal time with his mother and his father.  In a report prepared and released some 15 months later, Ms R made an even stronger recommendation to the effect that D live with the mother.  The Court has not had the opportunity yet of hearing evidence from the Family Consultants and that is to occur, as I understand it, on the dates allocated for the resumption of the trial.

4. In light of the evidence to date that the mother does, certainly according to the Family Consultants in their reports, enjoy a relationship of a healthy nature with D and given that the evidence in these proceedings to date is to a degree inconclusive, in my view, it does not represent D’s best interests to be deprived of the time that he spends with his mother.

5. However, in my view, given the mother’s failure to comply with my Orders and the alarm bells that that may set ringing in relation to “Y”, I believe that it is appropriate to agree with the submissions made by Mrs Tinning for the Independent Children’s Lawyer that the child not be left unsupervised in “Y’s” care certainly during the period of the adjournment when the mother may accept an opportunity to explain her attitude in that regard.

I certify that the preceding five (5) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 17 June 2011.

Associate: 

Date: