Abood and Abood
[2010] FMCAfam 308
•17 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABOOD & ABOOD | [2010] FMCAfam 308 |
| FAMILY LAW – Interim – parenting – issue of supervised time between children and husband – issue of non-compliance by wife to attend with children for interview by the family consultant. |
| Family Law Act 1975, ss.60CC(2)(a), 60CC(2)(b), 60CC(3) |
| Applicant: | MR ABOOD |
| Respondent: | MS ABOOD |
| File Number: | MLC 5537 of 2009 |
| Judgment of: | Monahan FM |
| Hearing date: | 17 February 2010 |
| Date of Last Submission: | 17 February 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 17 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Marchetti |
| Solicitors for the Applicant: | Lampe Family Lawyers |
| Counsel for the Respondent: | Ms McNamee |
| Solicitors for the Respondent: | Victoria Legal Aid |
| Counsel for the Independent Children’s Lawyer: | Mr Eidelson |
| Solicitors for the Independent Children’s Lawyer: | David Stagg Tonkin & Co |
ORDERS
The Applicant Husband and Respondent Wife attend upon Dr E for individual psychiatric assessment in relation to their respective mental health.
Each of the Applicant Husband and Respondent Wife pay for the costs of their respective assessment, subject to the provision of legal assistance for same by Victoria Legal Aid.
Paragraphs 1 to 6 of the Orders made 7 December 2009 remain in full force and effect save that the updated Family Report be prepared by
Dr O (or if unavailable, a Family Consultant nominated by the Regional Co-ordinator, Child Dispute Services in the Melbourne Registry) following receipt of the psychiatric reports referred to paragraph 1 herein.
Subject to Order 3 herein, the parties will forthwith comply with Orders 1 to 6 and 9 to 10 of the Orders made on 7 December 2009.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
[X] born [in] 2003, [Y] born [in] 2004 and [Z] born [in] 2006 (“the children”) spend time with the Applicant Husband for two (2) hours per fortnight at times nominated by Home Access Network and:
5.1an employee of the said agency supervise all contact with the Applicant Husband;
5.2the Applicant Husband pay the costs of the said supervision; and
5.3each of the Applicant Husband and Respondent Wife complete all forms and procedures as required by Home Access Network without delay.
AND THE COURT ORDERS THAT:
In the event of the Respondent Wife’s non compliance with paragraph 5 above, liberty be given to the Applicant Husband to have this matter listed for Mention before this Court seeking orders that the children without delay be presented to the Child Minding Room at the Family Court, pending further Order of this Court.
Liberty be given to the Applicant Husband and Independent Children’s Lawyer to list this matter for further Mention prior to the Final Hearing date, for a further Order in relation to Dr O completing her family report.
AND THE COURT NOTES THAT:
A.Paragraphs 1 and 2 of today’s Orders are not opposed by the parties.
B.In order to expedite paragraph 5.3 of the Orders herein, the Applicant Husband (through his Counsel) has provided the Respondent Wife (through her Counsel) with the necessary forms for Home Access Network.
C.Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Abood & Abood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 5537 of 2009
| MR ABOOD |
Applicant
And
| MS ABOOD |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter returned before me today for the purposes of an interim hearing in respect of whether the children’s[1] best interests would be served by the husband spending time with them under supervision.
[1] [X] born [in] 2003, [Y] born [in] 2004 and [Z] born [in] 2006
The parties are legally represented by Counsel today; the husband by Mr Marchetti, the wife by Ms McNamee; and the Independent Children’s Lawyer (“ICL”) is represented by Mr Eidelson.
The ICL, through his Counsel, has presented to the Court a minute of proposed orders which the husband does not oppose.
The wife only opposes those orders sought by the ICL that would allow the children to spend time with the father under the supervision of the Home Access Network at the husband’s expense.
Background
I detailed the relevant background in paragraphs 4 to 7 of my decision dated 7 December 2009. I can now add to that the following details.
It appears that the wife has not provided the necessary signed forms for the [omitted] Contact Centre at [omitted] as required by order 9 of the orders I made on 7 December 2009. The wife, through her Counsel today, submitted that the relevant forms have been signed and apparently lie with her solicitors, Victoria Legal Aid.
In addition, with respect to the orders that I made that the children attend with Dr O for the purposes of a family report to be prepared, I note that that did not proceed on 27 January 2010. Dr O states the relevant reasons as to what occurred on that occasion in her letter to the Court dated 29 January 2010, a copy of which I provided to the parties. The wife disputes some aspects of Dr O’s letter.
Issues
As stated in paragraphs 31 and 32 of my decision of 7 December last year, there is an outstanding issue as to whether the husband’s time with the children should commence forthwith on a supervised basis, with such supervision to be provided by a relevant service.
There is also an issue about whether both parties should be psychiatrically examined. I note this proposed order of the ICL is not opposed by either party.
Lastly, there is also an issue as to whether the proposed psychiatric reports should be conducted before Dr O completes the interviews for her family report. Again, all parties are in agreement that such psychiatric reports should be prepared in advance of Dr O’s interviews.
Submissions
Mr Marchetti submitted that the husband had signed the necessary forms for the [omitted] Contact Centre. He also indicated there was a likely six month delay, assuming those forms are lodged immediately, before such supervised time could occur.
Mr Marchetti submits that that contact, albeit supervised, should commence now, not only for the best interests of the children, but to enable a contact report or reports to be prepared for the assistance of the Court. He submitted that the wife had delayed the process and her actions on 27 January 2010 were not child-focussed.
Ms McNamee submitted for the wife that there was a history of domestic violence that may explain the wife’s actions. That having been said, the wife apologised for the incident on 27 January 2010 and for her failure to have the children interviewed by Dr O. Ms McNamee submitted that there was a real risk to the children if supervised time occurred now via an agency, although the wife accepted that a contact centre would afford the necessary protection for the children.
Mr Eidelson, appearing for the ICL, submitted that his minute of orders provided the way forward today. The ICL supports the children spending time with the husband, supervised by the Home Access Network. He also asked the Court to accept that Dr O’s actions on
27 January 2010 were appropriate and that the mother’s actions to date have hampered any assessment of the children’s fears and the like. He submitted that supervised contact should occur before any final hearing.
The law
I outlined the relevant law in my decision of 7 December 2009. As I stated in that decision, I need to balance the competing considerations in section 60CC(2)(a) and (b) of the Family Law Act 1975 (“the Act”) and consider that section 60CC(3) factors of the Act were relevant.
There are a large number of question marks hanging over this case. The wife has made some damning and disturbing allegations against the husband; I made that comment on the last occasion. Yet she has also resisted and, indeed, thwarted the process of these proceedings. Unless the parties can agree on an outcome here, which is not likely on the material before me presently, then the Court will need to decide what is in the best interests of the children in light of the Act, and the evidence and the process can only be assisted by reports such as the proposed psychiatric reports, the family report and a contact centre or similar report.
Conclusion
The Court considers the best interests of the children will be served by the orders sought by the ICL.
By way of summary, they will require the parties to be psychiatrically examined by Dr E as soon as possible. It will also require that the children, forthwith spend time with the husband for two hours per fortnight at a time nominated by the Home Access Network and that an employee of the said agency supervise all contact with the husband.
There will also be orders that the husband pay the costs of the said supervision; that each of the parties complete the necessary forms and procedures to enable that to commence without delay, and there will also be the orders specifically sought by the ICL, numbered 5 and 6 in his minute:
“5. In the event of the wife’s non-compliance with paragraph 3 above, liberty to the husband to have the matter listed for mention before Monahan FM or, if unavailable, a federal magistrate, seeking orders that the children, without delay, be presented to the child-minding room at the Family Court, pending further order of this Court.
6. Liberty to the husband and the independent children’s lawyer to list the matter for further mention prior to the final hearing date for a further order in relation to Dr O completing her family report.”
During submissions, Counsel indicated that the issue of changeover would also need to be addressed in the orders made today and I am satisfied that changeover should occur, as directed by the ICL and if the ICL is of the view that changeover occur at a contact centre, such consents be obtained as soon as possible.
There will also be orders today that the parties forthwith comply with Orders 1 to 6 and 9 and 10 of the orders that I made on 7 December 2009.
I will add two notations today. Firstly, I’ll note that the orders with respect to the parties attending with Dr E were not opposed and, secondly, that the husband, through his counsellors, provided the wife with the necessary forms with respect to Home Access Network.
I reserve the right to settle the reasons for this interim decision.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 17 March 2010
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