FLAST CASE BRIEF : IBBOT & BAUMER  FamCA 138
This is a family law matter concerning children and parenting. The final judgment has been reserved and the father as made an
#ApplicationInACase to re-open a trial that concluded on 16 November 2018 and for new evidence to be adduced.
The father alleges that he has not seen or spoken to the two children (both boys) aged eight and five, since before the trial and the orders currently in place do not provide for the children to spend any time with the father. These orders were not sought to be varied at the trial while the judgment is reserved.
The father filed an affidavit in support of the Application in a Case. In that affidavit the father deposes to not having seen the boys since September 2018, including not being allowed to see them on Christmas Day 2018, nor being allowed to provide them with bicycles that he had purchased them for Christmas. He also deposed to not being “allowed ... to speak to [the] children via telephone since the Hearing in November 2018”.
A second affidavit of the father was filed on 5 March 2019. It contained the deposition of the father that he “will not be attending a Contact Centre now or in the future as [he has] done nothing wrong to require supervision”.
He also said:
I will accept time with the children from 9:00AM Saturday until 4:00PM Saturday unsupervised and from 9:00 AM Sunday until 4:00 PM Sunday unsupervised every second weekend as well as school holiday time. However... the mother cannot encourage a meaningful relationship between myself and the children. I say that it is not in the best interest [sic] of these children to live with the mother and I am prepared to accept a live with order. I asked this Honourable Court for a change of residence for the children.
Determining the parenting proceedings involves determining allegations made by the mother that the father has perpetrated sexual abuse against one or both of the boys and that they would be placed in a situation of unacceptable risk if they have unsupervised time with him in the future.
The Judge said with respect to the father and his solicitor, I do not consider that the evidence would affect the result of the case. The father’s solicitor would know, even if the father does not, that this Court is not going to make its determination as to whether the orders should provide for the children to spend supervised or unsupervised time with the father on the sole basis of whether or not the father is willing to be supervised at a contact centre. The provisions of ss 60CC(1), (2) and (2A) of the Family Law Act 1975 (Cth) make it clear that greater weight is to be given to the consideration of the safety of the children than to the consideration of the need to maintain a meaningful relationship between the children and both their parents.
The judge went on to examine the father's claims that the mother was not allowing telephone communication with the children and said to be clear, the ICL submitted in very few words that there was no merit in the father’s application. She quite rightly submitted that if the father has a complaint that the mother has not been complying with the interim orders that provide for telephone communication as she is required to, that he should be filing an application for her to be dealt with for contravention of those orders not an application to re-open the trial. She also quite rightly submitted that he should have focused his efforts, whilst waiting for the judgment, on finding a supervisor or a supervising centre that would meet with the approval of the mother and the ICL, or, I add, at least of the Court.
The Court considered in this case that the mother would suffer significant prejudice if the matter were re-opened.
HELD : The Application in a Case is dismissed.