Stott and Holgar and Anor

[2014] FamCA 1104

FAMILY COURT OF AUSTRALIA

STOTT & HOLGAR & ANOR [2014] FamCA 1104

FAMILY LAW – CHILDREN – Interim Orders – with whom a child spends time with – maternal grandmother sought orders that would suspend time between the father and child – maternal grandmother alleges father has a history of violent behaviour and continues to pose a risk to the child – allegations already before the Court when previous parenting orders made – consideration of the best interests of the child – orders made for enforcing earlier parenting orders.

Family Law Act 1975 (Cth) s 60CC, 65DAA

APPLICANT: Ms Stott

FIRST RESPONDENT:	Mr Holgar
SECOND RESPONDENT:	Ms B Stott

INDEPENDENT CHILDREN’S LAWYER: Mr Adey

FILE NUMBER: ADC 2199 of 2008

DATE DELIVERED: 3 December 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 3 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Georgina Parker Lawyers

COUNSEL FOR THE FIRST RESPONDENT:	n/a
SOLICITOR FOR THE FIRST RESPONDENT:	In person
COUNSEL FOR THE SECOND RESPONDENT:	n/a

SOLICITOR FOR THE SECOND RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Adey

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adey Lawyers & Mediators

Orders

Upon Noting the father agreed to provide to the Maternal Grandmother’s solicitors and the Independent Children’s Lawyer full particulars of medical practitioners, psychologists and psychiatrists and copies of all reports prepared for previous Court proceedings.

IT IS ORDERED THAT

1. All parties and their legal representatives and the Independent Children’s Lawyer have leave to inspect and copy all documents produced by SAPOL pursuant to any subpoena SAVE AND EXCEPT those marked confidential.

2. The father shall spend unsupervised time with the child the child C born … 2006 as follows:

   (a)each Saturday from 12 noon to 3.00pm on eight [8] occasions commencing Saturday 6 December 2014;

   And thereafter until further order;

   (b)each Saturday from 10.00 am to 4.00 pm;  and

   (c)on the child’s birthday and on Christmas Day for three [3] hours at a time, with times to be agreed and if agreement cannot be reached from 3.00 pm until 6.00 pm.

3. All handovers shall take place inside the Suburb D Police Station.

4. The Applications in a Case filed by the Maternal Grandmother on 14 November 2014 and by the father on 24 November 2014 are dismissed and removed from the active pending cases list.

5. 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 NOTED that publication of this judgment by this Court under the pseudonym Stott & Holgar & Anor 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 2199 of 2008

Ms Stott

Applicant

And

Mr Holgar

Respondent

Ms B Stott

2^nd Respondent

EX TEMPORE EASONS FOR JUDGMENT

1. This is a matter which comes before me in the 9.15am list being applications in a case to be dealt with by way of interim matters. 

2. The first Application in a Case that is before me today is that filed on behalf of the maternal grandmother, on 14 November 2014, document 160.  That Application in a Case seeks orders:

   (1)      That the application be listed urgently;

   (2)      That until further order paragraph 4(b) of the orders made on 22 October 2014 be suspended; 

   (3)      That the father advise the name of his general medical practitioner, any psychiatrist and/or psychologists that the father has been referred to in the past 10 years;  the name of any psychiatrist or psychologists that have provided an assessment of the father for the purposes of criminal proceedings in a Magistrates Court or District Court of South Australia or for South Australian Correctional Services; 

   (4)      That until further order the father be restrained and an injunction granted restraining the father from:

   (a)attending at the home of the applicant maternal grandmother or within one kilometre of the said home or encouraging any other person to do so on his behalf; 

   (b)attending at the school of the child, [B], born on … 2006, or in the vicinity or encouraging any other person to do so on his behalf;  and

   (5)      Such other or other orders as this Honourable Court deems fit.

3. There have been no responses filed to that Application in a Case, save and except that the father has filed an Application in a Case on 24 November 2014, in which the box that he ticks is “enforcement of parenting orders”.  The orders sought in the handwritten documents are for:

   (1)    [Ms B Stott] and [Ms Stott] to enforce no defamation of my character, and to stop making false not true, scandalous allegations about [Mr Holgar] to hinder and stop orders that are already in place.

   (2)  That the order made on 22 October 2014 before Judge Simpson keeps progressing.

   (3)  I, [Mr Holgar], would like paragraph 4 of the order dated 22 November 2014 before Judge Simpson to be enforced. …

4. It then sets out other matters “I would like” and is not in the form of particular orders sought.  I assume that the 22 November reference is in fact one to the order made by Judge Simpson on 22 October 2014.  The father also seeks orders:

   (4)  That the orders made on 4 August 2014, that paragraph one and six remain [sic] going.

   (5)  That paragraph five of the orders made on 4 August 2014 before Judge Simpson will not continue.  Due to untruthful misleading information by [Ms B Stott] and [Ms Stott].

   (6)  I would like an order to be made for compensation for time lost with my son, the child [B]. 

   (7)  I would like an order to be made to subpoena all informations, interviews, dealings and conversations from the very first start to present time.

5. It then continues to refer to using Suburb E Children’s Contact Service and refers to subpoenas to Relationships Australia, Suburb E Children’s Contact Service.  Paragraph 8 reads:

   (8)           This matter as treated urgent. [sic].

6. I take into account that the father is unrepresented and the Application in a Case has been prepared by him and not by a suitably qualified lawyer. 

7. There are now 166 documents on the Court file.  One of the orders that was made in October 2014 by Judge Simpson of the Federal Circuit Court provided for the transfer of the proceedings to this Court.  Paragraph 16 of the order of 22 October 2014 of Judge Simpson says:

   Other than contravention applications filed on 16 December 2013 and 31 July 2014, the proceedings are transferred to the Family Court on the basis of the likely length of the hearing.

8. The order, however, commenced:

   Upon noting that at the conclusion of the contravention proceedings, the matter is to be transferred to the Family Court. (My emphasis)

9. There is, therefore, an inconsistency about the timing of the transfer of the matter to the Family Court of Australia between the notations and the order, but I have taken the order itself in paragraph 16 to be the dominant one. Although the contravention proceedings are not listed for hearing until April 2015, there were no submissions on behalf of any party before me today that would indicate that I should be prevented from exercising jurisdiction to determine the matters specifically in relation to the welfare of the child, B. 

10. On an ex tempore basis it is not appropriate, nor does time allow for me to set out in detail the background to these proceedings.  However, they have been on foot for years.  The child was born in 2006.  The proceedings were commenced in 2008 in what was then the Federal Magistrates Court (now the Federal Circuit Court).  There have been numerous matters put before the Court when the proceedings were simply between the father and the mother, and subsequently a substantial amount of documents also filed since the maternal grandmother, Ms Stott, has become a party to the proceedings in February of this year.

11. During the submissions I have heard today from the counsel on behalf of the maternal grandmother (which submissions were supported by the mother) issues have arisen in relation to the significant allegations of violence, criminal behaviour and convictions of the father. 

12. The Court now has before it, annexed to affidavits of the Independent Children’s Lawyer and of the grandmother’s solicitors, a significant amount of material setting out some of the history of the convictions and the allegations made, which indicates serious issues concerning family violence and the suitability of the father as a person who would have the unsupervised care of a young child. 

13. It is put to me that most of the allegations, or at least a significant number of serious allegations concerning the violent and criminal behaviour of the father, were already before Judge Simpson when the orders were made by him on 22 October 2014.  I accept that submission. 

14. It is also clear that the Court now has before it material which comes from the subpoenaed records, which indicate that the allegations made by the mother and the grandmother concerning the father’s violent behaviour are to a certain extent supported by the allegations made in the subpoenaed documents and by the convictions which have been imposed upon the father, including substantial prison sentences. 

15. The question is, however, not whether there is a review of the orders made of the Federal Circuit Court but whether today, considering all of the material which is before the Court, the orders which are sought should be made, being orders which promote the best interests of the child, the child, as the paramount consideration. 

16. The provisions in relation to the law which applies are clearly known to the Independent Children’s Lawyer and counsel for the grandmother. In particular there is the need to consider the provisions of section 60CC of the Family Law Act 1975 (Cth).

17. This is not a case in which section 65DAA applies, which considers that the parents should have equal shared parental responsibility and that I should be required to consider significant or substantial or shared time with the child and each of the parents. 

18. The matter is much more complicated than the standard case. The history of the matter clearly indicates that the mother has had significant difficulties in relation to drug abuse and other factors which would impact upon her capacity to carry out the role of caregiver for the child. The orders which are in existence provide for the child to live with the maternal grandmother. In relation to the material that I have to consider under section 60CC, the significant factors are the question of family violence and the impact that family violence would have upon the child and the need to protect the child from any risk of abuse, whether it be physical or psychological abuse.

19. The matters which are before the Court clearly indicate that there have been significant problems of family violence between the mother and the father in the past.  There is now an allegation that there was a recent significant incidence of family violence, which resulted in the mother seeking medical treatment.  That is vehemently denied by the father.  The current status of the information before the Court is such that the Court is not able to make a determination.  A mere allegation of domestic violence or violence, unless established, would not of itself require the Court to bring to an end contact between the child and a parent if the child’s contact with that parent would otherwise be of benefit to the child and assist the child in having the benefit of a meaningful relationship with one of the child’s parents, in this case the father.

20. The matters which have to be determined place upon the Court difficulty in assessing the capacity of the parties, the grandmother, the mother and the father, to provide for the appropriate needs of the child and their understanding of their obligations in relation to that role. There are many other factors in section 60CC, including, as I have indicated already the violence which have to be taken into account.

21. It is significant that the Court has before it the report of the contact centre, setting out the interaction between the father and the child, which indicated there was an appropriate relationship. 

22. I take into account the submissions made on behalf of the mother which related to allegations that, notwithstanding the indications from the contact centre about not providing gifts, the father was bringing gifts for the child.  I do take into account, however, the interaction between the child and the father on those occasions and the existence of the family reports in relation to the relationship between the father and the child. 

23. Whilst the Court has very serious concern about the allegations and convictions of the father in the past for very serious violent behaviour the material has to be seen in a context of the dates when most of those occurred back to 2005 and 2006 (albeit very serious allegations resulting in convictions as recently as 2011 or 2012).

24. However, taking into account all of the matters and the orders which were put in place by Judge Simpson on 22 October 2014 I am not satisfied that the material which is now provided to the Court creates a necessity to reconsider those orders.  The past history of the convictions and the material now provided to the Court was not material that was denied by the father, rather the significant material was admitted by the father.  He claims that he has “moved on”.  (That, of course, does not include the allegations made in relation to the recent assault upon the mother by the father, which is denied). 

25. I have to consider the best interests of the child, the child, as the paramount consideration.  I have taken into account the submissions on behalf of the Independent Children’s Lawyer which points out that the family assessments have also supported the ongoing relationship between the father and the child.  Notwithstanding the allegations in relation to violent behaviour in the past by the father I am not satisfied that those allegations are sufficient to establish on this interim basis that the child would be at risk of harm if the orders made by Judge Simpson were to remain in place.

26. Those orders provided that the child reside with the maternal grandmother and that the father spend unsupervised time each Saturday from 12 noon to 3.00 pm on eight occasions commencing on 15 November 2014 and thereafter until further order each Saturday from 10.00 am until 4.00 pm and on the child’s birthday and Christmas Day for three hours at a time with times to be agreed and if agreement cannot be reached from 3.00 pm until 6.00 pm.

27. The other orders made certain directions and are not the subject of any particular significant submissions at the moment.  It provided also for the maternal grandmother or her nominee to be at all handovers on behalf of the mother.  I assume that meant that the mother was not to participate in the handovers. 

28. Therefore, the only variation which needs to be made to the orders of 22 October 2014 is that the father’s unsupervised time with the child should commence on this coming Saturday, 6 December 2014 and thereafter be from 12 noon until 3.00 pm on eight occasions and thereafter each Saturday from 10.00 am to 4.00 pm, and on the child’s birthday and Christmas Day for three hours at a time with times to be agreed, and if agreement cannot be reached from 3.00 pm until 6.00 pm.

29. It is clear from the submissions in relation to the handovers that the Suburb F Children’s Contact Service is not available.  Therefore all handovers shall take place inside the Suburb D Police Station as otherwise provided for in paragraph 5. 

30. The orders will therefore be that paragraphs 4 and 5 of the orders of Judge Simpson of 22 October 2014 are varied to provide that the father shall spend unsupervised time with the child, the child B, born in 2006, as follows:

    (a)each Saturday from 12 noon to 3.00pm on eight occasions commencing on 6 December 2014 and thereafter until further order;

    (b)       each Saturday from 10.00 am until 4.00 pm;  and

    (c)as it currently stands, on the child’s birthday and on Christmas Day for three hours at a time with times to be agreed, and if agreement cannot be reached from 3.00 pm until 6.00 pm;

    (d)       all handovers shall take place inside the Suburb D Police Station.

31. Otherwise the matter has already been referred for the preparation of a family report and thereafter the matter will be placed in the necessary trial list for preparation of final hearing if necessary.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 3 December 2014.

Associate: 

Date:  9 December 2014