Waterford and Waterford

[2012] FamCA 95

FAMILY COURT OF AUSTRALIA

WATERFORD & WATERFORD [2012] FamCA 95

FAMILY LAW - CHILDREN – interim orders – where the father seeks to spend time with the children on each weekend – where there are concerns surrounding the father’s intensely negative view of the mother – best interests – orders that the father spend alternate weekends with the children.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Waterford

RESPONDENT: Mr Waterford

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 4588 of 2009

DATE DELIVERED: 17 January 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: Burr J

HEARING DATE: 17 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms P Kari
SOLICITOR FOR THE APPLICANT:	Ms N K Dunford

COUNSEL FOR THE RESPONDENT:	Mr G Noble
SOLICITOR FOR THE RESPONDENT:	Von Doussas Legal Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Stephen
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission

Orders

1. That further consideration of the proceedings be adjourned to 9.15 am on Thursday 19 April 2012 before the Honourable Justice Dawe.

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

1. Paragraph 2 of the Orders made on 22 April 2010 be suspended.

2. The father spend time with the children C born … March 2005 and M born … June 2007 from 9.00 am on Saturday until 5.00 pm on Sunday each alternate weekend, commencing on Saturday 4 February 2012 and each alternate weekend thereafter.

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

1. Any handovers on non-school days are to be effected at the Suburb G Police Station.

2. The father do ensure that he returns to the mother at the conclusion of each period the possessions which the said children had on delivery including, but without being limited to, school uniforms, school bags and lunch boxes.

3. The parties are restrained and an injunction is hereby granted restraining each of them from:-

   (a)    abusing, denigrating or rebuking the other in the presence or hearing of the said children or permitting any other person to do so;

   (b)    discussing these proceedings with or in the presence of the said children or permitting any other person to do so;

   (c)    discussing the allegations raised in these proceedings with or in the presence of the said children or permitting any other person to do so.

4. The father is restrained and an injunction is hereby granted restraining the father from causing or permitting his brother Mr K to be in the presence of the said children unless another adult is also present.

5. The mother is restrained and an injunction is hereby granted restraining the mother from causing or permitting the child J to be in the presence of the said children.

6. The father do ensure that the said children each have their own separate beds for overnight time.

7. The parties do all such acts and things necessary to forthwith enroll in the H Children’s Contact Service.

8. The parties do all such acts and things necessary to forthwith enroll in and complete the Anglicare Families Programme.

9. The parties do all such acts and things necessary to forthwith enroll the child C and facilitate her participation and attendance in either Children’s Programme A or Children’s Programme B.

10. The father forthwith do all such acts and things necessary to attend therapy with a clinician who may assist him to improve his child focus and place the children’s need to share positive relationships with both parents above his personal issues with the mother.

11. The mother be permitted to release copies of all documents filed in these proceedings to the legal representatives for J.

IT IS NOTED that publication of this judgment under the pseudonym Waterford & Waterford 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 4588 of 2009

Ms Waterford

Applicant mother

And

Mr Waterford

Respondent father

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me a dispute between the parties in relation to two young children namely, C who was born in March 2005 and who is therefore nearly 7 years of age and M who was born in June 2007 and who is 4 ½ years of age.  The dispute between the parties is a difficult one for them to manage in that the reason why the matter originally came to the attention of the Court’s Magellan Project was an allegation that the son of the mother’s partner, that son being J, has sexually abused the children.  There is clearly some concern in that regard and potentially some substance to those allegations as criminal proceedings have been brought to bear against J and that matter has been listed for trial in the first week of March 2012. 

2. In orders that were made on the last occasion, namely 12 December 2011, that did not prejudice the mother’s entitlement to have the children live with her but the Court imposed upon her an injunction to ensure that the children were indeed safe from J and that J was not to be in the presence of the children.  The mother will understand just how important it is for her to comply with those orders of the Court which I note are by consent to be continued during the period of the adjournment.  In the event that she is not vigilant in that regard and harm indeed comes to C and M then it might well be difficult for the Court to support her primary parenting role.

3. The Court has been greatly assisted by a Family Report provided and dated 15 December 2011.  In it the Family Consultant sets forth an evaluation commencing at paragraph 52 and then a number of recommendations at paragraph 57.  The parties have agreed all matters save as to the amount of time that the father is to spend with the children during the period of the adjournment.   The father is seeking that he spend alternate weekends with the children from Friday afternoon until Sunday afternoon (as was ordered by Simpson FM on 4 July 2011) or, as a minimum, the whole of one weekend and overnight on the other weekend such that he has time with the children each weekend.

4. The mother’s position is that promoted by the Family Consultant, namely that the children spend time with the father on alternate weekends from 9 am on the Saturday until 5 pm on the Sunday.  Whilst the mother does not dispute that the children enjoy their relationship with their father and that indeed their relationship with their father should be sustained, she adopts the position identified by the Family Consultant as being a matter of concern in relation to the father’s presentation. 

5. I will not detail them specifically but they are found particularly in paragraphs 53 and 54 of the Family Report.  The Family Consultant’s concerns in that regard are specifically as to the father’s very toxic view of the mother and the impact this may well have on the children’s relationship with their mother.  Unless and until he can modify that view, if in fact he holds that view and I remark that it has not yet been tested on evidence, then his role in his children’s lives will be severely restricted.  I note though and I am pleased to see it, that he has agreed with the recommendation that he attend therapy in order to assist him to place his children’s needs ahead of his own. 

6. As I identified in discussion with Counsel there may be a variety of reasons why he has agreed to that.  One of them could well be that he is trying to put on his best face for the Court and simply do it because the Family Consultant has recommended it.  Another could be because he takes on board what the Family Consultant says, identifies that there may well be some flaws in his parenting and is keen to do something about it and improve his approach in that regard so that he can assume a more fulsome role in his children’s lives.  Only the future will tell which of those is his true position.  It is hoped that it is the latter so that the children can enjoy a full, happy and unconflicted relationship with each of their parents. 

7. I have considered all of the matters which arise as relevant under Part VII of the Family Law Act and, in particular, the multiple matters detailed in Section 60CC.  In my view, it represents the best interests of the children that they spend time with their father each alternate weekend from Saturday at 9 am until Sunday at 5 pm.

I certify that the preceding seven (7) paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Burr delivered on 17 January 2012.

Associate: 

Date: