Allanach and Allanach

[2012] FamCA 1136

FAMILY COURT OF AUSTRALIA

ALLANACH & ALLANACH [2012] FamCA 1136

FAMILY LAW – CHILDREN – Magellan matter involving allegations against the mother and a maternal uncle – Interim parenting orders made pending further review of the matter by the Magellan Registrar – Children to live with the father – Children to spend unsupervised and day time only contact with the mother – Various injunctive restraints placed upon the parties when the children are in their care

Family Law Act 1975 (Cth)

APPLICANT: Ms Allanach

RESPONDENT: Mr Allanach

INDEPENDENT CHILDREN’S LAWYER: Tom Reeve

FILE NUMBER: PAC 4198 of 2012

DATE DELIVERED: 10 December 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 10 December 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Bainbridge

Bainbridge Legal

SOLICITOR FOR THE RESPONDENT:

Ms Tabone

Fairfax Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Reeve

Marsdens Law Group

Orders

1. That leave is granted to the legal representatives to inspect subpoena material produced.

Later

1. That I stand this matter over at 9.30 am on 7 February 2013 before Registrar Bartlett for further Magellan directions.

2. That the children, B born … April 2006 and C born … February 2008, shall spend time with the applicant mother as follows:

   (a)During school term being Term 4, 2012 or the school year commencing 2013 on each Tuesday afternoon between 3 pm and 6 pm,

   (b)From the commencement to the conclusion of the school holiday period each Tuesday from 9 am until 5 pm save and except 25 December 2012 and each Sunday from 9 am until 5 pm.

   (c)That for Christmas Day, 25 December 2012, the child shall spend time with the mother from 1 pm until 6 pm;

3. That on all occasions the father shall deliver the children to the mother at the Suburb D McDonalds Family Restaurant and in the event that that restaurant is not open such changeovers shall occur at the Suburb D McDonalds car park. The mother shall return the children to the father at that same place at the conclusion of each such period of time she spends with them and in the event that restaurant is closed then that  changeover shall occur in the car park of the relevant McDonalds.

4. That the mother and the father be restrained from brining or allowing the children to be brought into contact with the mother’s brother Mr E.

5. That the mother and the father shall be restrained from consuming any illicit or prohibited drugs twenty-four (24) hours prior to and during any time spent with the children.

6. That both parties be restrained from using any form of physical chastisement or force on or towards either of the children.

7. That neither party shall themselves discuss these proceedings with either child or denigrate the other party to the child or either of them nor permit, cause or allow any other person to do so.

8. That I liberty is granted to either party or Independent Children’s Lawyer to restore the matter to the list in the event of any difficulty upon giving seventy-two (72) hours notice to the other party and the Independent Children’s Lawyer.

9. I note that material has been produced by Suburb F Hospital and I direct that the father’s legal representative shall be given first opportunity to inspect that material. In the event there are any difficulties, those difficulties are to be first raised with the Registrar.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allanach & Allanach 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 PARRAMATTA

FILE NUMBER:  PAC 4198 of 2012

Ms Allanach

Applicant Mother

And

Mr Allanach

Respondent Father

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter concerns the children of the parties, B, born in April 2006, and C, born in February 2008.  The matter has already assumed some complexity, and has been placed in the Magellan program.  I have had the opportunity of reading the Magellan Report, which has been made available to the Court and which was released to the parties today.  It is clear that significant allegations are made concerning the mother herself and members of her family.  It appears that the father, from time to time, has made, retracted and remade allegations, particularly concerning the mother’s actions towards the child, B.

2. The situation for the moment is that some orders must be made so that the matter can advance.  The matter will next come before Deputy Registrar Bartlett, the Magellan Registrar in this Registry, on 7 February 2013 for further directions to be made.  It is hoped that funding and other matters can be resolved to enable an expert, that is, a psychiatrist, to be appointed to prepare a report in this matter.  On what I have read and heard, it seems to me that such an appointment is of great importance in enabling the Court to further deal with and finalise this matter.

3. What I am therefore left with for today, is the question of what is to happen until the matter can be finalised. The Independent Children’s Lawyer has put to me a minute that provides for the children to live with the father and spend time with the mother pending further review. Counsel for the father supports that aspect of the Independent Children Lawyer’s minute. Counsel for the mother opposes it and says the children should live with the mother. In the circumstances of this case, and having regard to what I have heard and read, and placing due regard on section 60CC(2) of the Family Law Act 1975 (Cth), the need to encourage a relationship with both parties but protect the safety of the children at the same time, I am of the view that in this case and until further material is to hand, it is appropriate that the children should live with the father.

4. The next issue canvassed is the time that the children are then to spend with the mother until this matter can be resolved or at least reviewed, pending further processes that will be undertaken.  It is suggested by the Independent Children’s Lawyer, Mr Reeve, that it should be one afternoon each week and one weekend day.  Mr Reeve fairly concedes that when such orders were formulated he had in mind that the orders would apply to periods when the children were attending school.  It is clear that the children will shortly, in both their institutions, commence long holidays, which will be for the latter part of December and effectively the whole of January.  Accordingly, there will be time during that period that would not otherwise be available for the mother to spend time with the children.

5. The father, as I understand it, seeks that the mother’s time be supervised.  I am conscious that the allegations that are made are serious, however, I have concerns as to the father’s attitude, when he can make a serious allegation, subsequently withdraw it and then remake it.  I am satisfied that supervision is not needed on the material presently before the Court on the basis that the children will be spending some time with their mother, but that will not include overnight time.

6. There is also, of course, the issue of Christmas Day looming, and it seems to me that I should make special provision for Christmas Day, as it is quite clearly in a different category and situation from other days.

7. The orders that I propose to make are such as to give the mother two full days during the week.  The days suggested have been Tuesday and Sunday, and I have heard no opposition to that.  I propose to order that the parties effect changeover at Suburb D McDonald’s.  I propose to order that during the balance of the school term, and, if necessary, into the beginning of school Term 1, 2013, the time be more limited and be of a Thursday afternoon from 3.00 pm until 6.00 pm, and the same for a Sunday for a relatively extended period of time.

8. I do propose to make an order against each of the parties not to either discuss these proceedings in the hearing of the children, or either of them, or directly with either of the children.  I propose to order that neither party denigrate the other in the hearing of the children, or either of them.

9. I will also order that the mother and father be restrained from consuming any illicit or prohibited drugs in the period of 24 hours prior to and during any time spent with the children.

10. I further note that material has been produced by Suburb F Hospital.  I direct that the father’s legal representatives be given first opportunity to inspect that material, and in the event of any difficulties, that those difficulties be raised initially with the Registrar.

11. The orders that I make then are those as set out at the forefront of this Judgment.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 10 December 2012.

Legal Associate:       

Date:    12 February 2013