TAVENER & DEICHMANN

[2013] FamCA 319

FAMILY COURT OF AUSTRALIA

TAVENER & DEICHMANN [2013] FamCA 319

FAMILY LAW – CHILDREN – interim orders – with whom a child lives with – best interests – orders for the children to live with the father pending the mother providing certain undertakings to the father’s solicitors and the Independent Children’s Lawyer confirming the residential address of herself, the children and her partner.

Family Law Act 1975 (Cth)

APPLICANT: Mr Tavener

RESPONDENT: Ms Deichmann

INDEPENDENT CHILDREN’S LAWYER: Southern Vales Legal

FILE NUMBER: ADC 1623 of 2011

DATE DELIVERED: 3 May 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 3 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Goff

SOLICITOR FOR THE APPLICANT: R J Cole & Partners

COUNSEL FOR THE RESPONDENT: Ms Milen

SOLICITOR FOR THE RESPONDENT: Jo-Ann Milen & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Southern Vales Legal

Orders

1. The children M and B are to remain living with the father until such time as the mother provides a written undertaking to the father’s solicitors and the Independent Children’s Lawyer confirming her current residential address, the current residential address of the children and the current residential address of Mr C and undertakes not to change that current residential address unless she provides to the father’s solicitors and the Independent Children’s Lawyer (before any change of address) full particulars of her proposed new address.

2. Upon receipt of the written undertaking by the father’s solicitors the children should be returned to the care of the mother by 6.00 pm the following day.

3. Thereafter during the period of the adjournment the existing Orders in relation to the children shall be maintained.

4. The mother is to attend all appointments and make all arrangements as requested by Family Consultant, Ms D, to allow the Family Report to be completed prior to the trial listing on 3 June 2013.

5. Further consideration is adjourned to Friday 17 May 2013 at 9.15 am before the Honourable Justice Dawe.

6. By 4.00 pm on Monday 13 May 2013 the mother is to file and serve any Response and affidavit upon which she seeks to rely UPON NOTING the affidavit should include the mother’s explanation for failure to attend upon the Family Consultant, Ms D, and the alleged failure to comply with Court Orders concerning particulars of Mr C’s release.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tavener & Deichmann 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 1623 of 2011

Mr Tavener

Applicant

And

Ms Deichmann

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a hearing of an Application in a Case filed on 24 April 2013 in which the father seeks urgent interim Orders that pending the trial the children M, who was born in November 2006, and B, who was born in December 2007, live with the father, that the party with the care of the children ensure that the children attend the Family Consultant, Ms D, on a date nominated by her for the purpose of completion of the updated family report.  That Application in a Case is supported by an affidavit of the father filed on the same date. 

2. I am told this morning from the bar table that the Application in a Case and affidavit were served upon the mother by posting the same to her address for service on 30 April 2013.  In that regard it was conceded that she may have only received the application yesterday.  There is, as appears from the affidavit material and submissions put to me by counsel today, a clear issue as to the mother’s current residence and the children’s current residence. 

3. This morning the former solicitor for the mother appears saying that she received instructions yesterday.  The former solicitor, Ms Milen, filed a Notice of Ceasing to Act on 28 March 2013 giving the address of the mother at the Suburb E address to which the Application in a Case and affidavit were posted.  I also have appearance this morning by the Independent Children’s Lawyer, Mr Reynolds.

4. The issue concerns the compliance by the mother with the Orders of this Court, and in particular, the compliance which impacts significantly upon what is in the best interests of the children, namely one of the major criteria;  protecting the children from any risk of abuse. 

5. The affidavit of the father before me this morning sets out the father’s concern about the mother’s behaviour.  In particular, it asserts that the mother has not complied with the Order of FM Mead (as she then was) of 23 April 2012 in which it was ordered that the mother, or her agent, provide the father’s solicitors with 21 days notice of the proposed date of Mr C’s release from custody, including release on parole or home detention, and provide details as to where Mr C will be residing upon his release.  That was clearly an appropriate Order in view of the offending history of the mother’s current partner, Mr C, and the fact that he is placed on the Australian National Child Offender Register and has previously been diagnosed with serious mental health issues.

6. The mother’s partner was serving a sentence in gaol in relation to what were child pornography matters, although the particulars of the offence are not set out.

7. In any event it is asserted in the father’s affidavit that conditions of the mother’s partner’s parole involve him also being restrained from having contact with the children.  In relation to that there is also the existence and injunction of the Federal Magistrates Court (as it then was) restraining the mother from bringing either of the children into any contact whatsoever with Mr C.

8. The affidavit then sets out particulars of the concerns which have been raised by comments the children have made to the father along the lines of “[a form of Mr C’s first name] Daddy is at home” the implication being that the children were residing in the same premises as Mr C following upon his release. 

9. It appears on the face of the documents that it is quite difficult for anyone to maintain at this stage that the mother has complied with the Order providing that she give information to the father about any proposed release by Mr C and his residence.  It also appears that she has not complied with the Order which set in place Ms D’s report in that it apparently is not denied that she has not attended upon Ms D for the updated report.

10. The previous report of Ms D, prepared back in January 2012, made a recommendation that the children not live with, or have any unsupervised contact with, Mr C.  These issues are all before me this morning.  I am being asked to adjourn the matter to allow the mother to file and serve appropriate answering documents and enable the Court to consider her case. 

11. It is necessary for me to make a decision as to what is in the best interests of the children as far as their living arrangements are concerned.

12. The father’s counsel are putting to me that during the period of adjournment the children should live with the father, or at least do so until such time as the mother has provided appropriate information concerning her living arrangements and the children’s living arrangements.  The Independent Children’s Lawyer supports the Orders sought by the father. 

13. Counsel for the mother was expecting the mother to be appearing here this morning and clearly the mother was aware of the hearing this morning, but she has not appeared.  She was specifically called at 9.30 am.  It is now 10.00 am and no one has entered the Court since she was specifically called.  There is, therefore, considerable concern about the issues concerning how I determine what is in the best interests of the children.  I am told from the bar table that if the children are currently in the care of the father and if they remain in his care during the period of the adjournment they would be able to continue to attend at their current school.

14. There is in the history of the matter before the Court clear indication that the children have been in the primary care of the mother for a substantial period of time.  The Court needs to take into account the effect that the change would have upon the welfare of the children and balance that out against the serious concerns the Court has as to the mother’s care of the children and her compliance with the Court Orders.  I take into account the young age of the children and the decisions which have previously been made providing for the children to reside primarily with the mother pending a final hearing.

15. I have made comments from the bench requesting that counsel, including the Independent Children’s Lawyer, seek the cooperation of the Family Consultant report writer to prepare the report in time for the listing of the matter for trial which has been listed now for the week commencing 3 June in order that the Court will have before it all appropriate information to determine what is in the best interests of the children.  I accept that this may prove difficult for the Family Consultant and that difficulty is created by the mother’s failure to attend upon the Family Consultant.  There appears to be some issue related to the Family Consultant possibly wishing to see Mr C at the same time as the mother and children attend upon her, notwithstanding there is a clear injunction restraining the mother from allowing the children to have any contact whatsoever with Mr C.  I do not intend to discharge that injunction today and emphasise that it must be complied with at all times.

16. In relation to the determination of what is in the best interests of the children, I consider that their well-being and the need to protect them is the primary consideration.  Bearing in mind the short adjournment which I am now giving the matter, I consider that it is appropriate for the children to remain in the care of the father until such time as the mother provides a written undertaking to the father’s solicitors and the Independent Children’s Lawyer, confirming her current residential address, the current residential address of the children and undertakes not to change that current residential address unless she provides to the father’s solicitors and the Independent Children’s Lawyer before any change of address full particulars of her proposed new address.

17. Upon the receipt of that written undertaking by the father’s solicitors the children should be returned to the care of the mother by 6.00 pm the following day.  That means not that day but the following day and that thereafter the existing Orders in relation to the children shall be maintained during the period of the adjournment. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 3 May 2013.

Associate: 

Date:  14 May 2013