Abre and Kahn

[2009] FamCA 833

FAMILY COURT OF AUSTRALIA

ABRE & KAHN [2009] FamCA 833

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

Family Law Act 1975 (Cth)

APPLICANT: Mr Abre

RESPONDENT: Ms Kahn

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6461 of 2009

DATE DELIVERED: 4 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nisiforoy

SOLICITOR FOR THE APPLICANT: Victorian Aboriginal Legal Service

THE RESPONDENT: In person

Orders

1. That all outstanding applications are adjourned to the Senior Registrar’s List of cases at 9.45am on 25 August 2009.

2. That until further order, paragraph 4 of the orders made 24 November 2008 is suspended.

3. That until further order, the mother spend time with the child … born … November 2003 as follows:

   (a)on each alternate weekend from 4.00pm Friday until 4.00pm Sunday commencing on 7 August 2009; and

   (b)on each alternate Wednesday from 4.00pm until 4.00pm on the following Thursday commencing on Wednesday 12 August 2009,

   subject to the wife being able to comply with paragraph 6 of the orders of the Honourable Justice Benjamin made 24 November 2008.

4. That the practitioner for the father forthwith rectify the incorrect minutes attached to the orders of the Honourable Justice Benjamin made 24 November 2008.

AND THE COURT NOTES:

A.That the matter before the Senior Registrar on the return date includes an application by the father for contravention orders against the mother and the father will consider his position noting that the Senior Registrar does not have jurisdiction to deal with those matters.

B.That the mother was not present when these orders were made notwithstanding her earlier presence at court on the basis of being taken to hospital.

IT IS NOTED that publication of this judgment under the pseudonym Abre & Kahn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6461 of 2009

MR ABRE

Applicant

And

MS KAHN

Respondent

REASONS FOR JUDGMENT

1. This is an application that was before the court today in the duty list.  It was filed on 24 July 2009, returnable at 10 am this morning.  In addition to the application, there was also an application filed by the father, seeking that the mother be dealt with for contravention of the orders that were made by Benjamin J on 19 November 2007. 

2. These are parenting proceedings involving a child, a son, born in November 2003.

3. I note that on 24 November 2008, all parties were represented by counsel, including the Independent Children’s Lawyer.  The consent orders provided for the child’s time to be spread between his mother and father on a week-about basis, from Friday through to Friday.  However, the mother’s time under those orders was conditional upon a number of things.  Those things were that she lived with her mother;  that she not bring the child into contact with Mr M;  that she abide by all lawful treatment directions given by her treating practitioners, including taking prescription medication as prescribed;  that she not consume any non-prescribed or illicit substances whilst the child was in her care;  and that she maintain the child’s enrolment at the O Primary School commencing in 2009.

4. The application before the court today was to vary those orders by simply reducing the time from a week-about arrangement to alternate weekends and alternate Wednesdays overnight into the Thursday. The basis of that application, which was also the basis of the contravention, was that the mother has not complied with the orders of Benjamin J.  There have been strong statements in the affidavit of the school principal, albeit in a very vague and hearsay way, that the mother has attended the school affected by drugs and that the principal has concerns for the child’s welfare. The father deposes to a whole series of things that have indicated that the mother has been drug-affected and breached the order.  When the mother appeared today, she indicated she was served on Thursday.

5. There is a suggestion she was actually served on Wednesday, but it matters little, having regard to the difference in time.  The mother indicated that she was 30-something weeks pregnant and that was also obvious.  When she went to see the duty solicitor, it appears that she has commenced the pathway to birth and has now gone to hospital.  Having regard to the nature of the allegations, it seems to me that she is not going to be able to care for the child, in any event, on an interim basis and, in addition to that, what the father proposes is that her time be simply reduced, in any event.  It seems to me that as a protective measure for the child and on a short term basis, I ought to simply suspend the existing orders and make an order that the mother have time with the child in terms of paragraph 4.6 and 4.7 of the interim orders sought in the application filed on 24 July.

6. On that basis, those orders can stay in existence until the matter can return to the court in probably two to three weeks’ time.  In the event that the child is not capable of being cared for by the mother because of her hospitalisation, in respect of the overnights, on the weekends and the Wednesday into Thursday, then the father will not be needing to comply with those orders.  The mother will need to show that she is able to care for the child during that period of time. 

7. The logical conclusion at this stage is to simply adjourn the proceedings to the next available senior registrar’s date in three weeks’ time and to make orders suspending the existing orders, and ordering that the mother spend time on alternate weekends and alternate Wednesdays, subject to her capacity to be able to care for the child, and comply with the conditions of the orders of Benjamin J otherwise.

I certify that the preceding Seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  10 August 2009