Andrews & Mawson

[2007] FamCA 482

FAMILY COURT OF AUSTRALIA

ANDREWS & MAWSON [2007] FamCA 482

FAMILY LAW - CHILDREN – Welfare proceedings in Standard Defended List of high intensity – Serious allegation with children disaffected from their mother – Resolution achieved on interlocutory basis.

APPLICANT: Mr Andrews

RESPONDENT: Ms Mawson (formerly Andrews)

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3575 of 2005

DATE DELIVERED: 14 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 13, 14 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kounnas

SOLICITOR FOR THE APPLICANT: Waters Timms Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Brewer

SOLICITOR FOR THE RESPONDENT: Heinze & Partners

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Maramis

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Victoria Legal Aid

Orders

BY CONSENT IT IS ORDERED

1. That the further hearing of this matter be adjourned to 9.30am on 26 October, 2007 for mention only.

BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER

1. That the children of the marriage:

   A - born in January, 1994

   D - born inAugust, 1995

   spend time with and communicate with the wife as follows:

   (a)At such days and times as nominated by the proper officer of G Centre or how otherwise described, but not less than 2 hours per fortnight and subject to supervision as directed by the said proper officer or as otherwise directed by the proper officer.

   (b)By cards and letters at all reasonable times and directed through the school or schools of the children and the Independent Children's Lawyer when the children are not at school.

   (c)At the direction of the Coordinator or nominee of PARENTING ORDERS PROGRAM.

   (d)As otherwise might be agreed between the parties.

2. That the husband forthwith advise the wife of the school or schools to which the children or either of them attend and notify the wife 28 days prior to any change thereto.

3. That the husband forthwith authorise the proper officer of any school to which the children or either of them might attend from time to time to:

   (a)       Provide to the wife at the wife's expenses copies of:

   (i)School reports.

   (ii)School photographs.

   (iii)School newsletters.

   (iv)School memoranda.

   (v)Any other documents ordinarily provided to parents.

   (b)Grant leave to the wife to communicate directly with the proper officer of the relevant school or schools to which the children attend, in writing by telephone or in person and attend parent-teacher interviews.

4. That the husband notify the wife of any significant illness or injury suffered by the children or either of them, notify the treating health professional or institution and authorise the treating health professional or institution to confer directly with the wife on all questions regarding the children or either of them and their welfare.

5. That within 7 days hereof the husband and the wife do all acts and things and complete and sign all documents necessary to:

   (a)Enrol the husband and the wife and the children in the G CENTRE PARENTING ORDERS PROGRAM "S" and attend for intake interviews and appointments as nominated or directed by that service including, to complete any courses as nominated by such service.

   (b)Apply for acceptance to the G Centre pursuant to Order 2(a) hereof.

6. That for the purposes of Orders 2(a), (c) and (d) and Order 6 hereof the husband deliver the children as directed by the proper officer of the G Centre organisation however described.

7. That Orders 2, 4, 5, 6, 7, 8, 9, 10 and 11 of the Orders of 24 February, 2006 be discharged.

8. That the husband attend a psychiatrist nominated by the Independent Children's Lawyer for the purposes of assessment and report.

9. That the costs of the report subject to Order 9 hereof be the sole responsibility of the husband.

10. That an updated Family Report be prepared and released to the parties and the Independent Children's Lawyer no later than the 22nd October, 2007 and it is requested that Mr N prepare such report.

11. That the husband and the wife, their servants and agents be and are hereby restrained by injunction as follows:

    (a)From abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other's family or household to the children or either of them or in the hearing of the children or either of them or permitting any other person so to do.

    (b)From discussing these proceedings with the children or either of them or without Order of the Court permitting any other person to do so.

12. That the Independent Children's Lawyer provide to the proper officer of the G Centre:

    (a)A copy of the Family Report of Mr N and dated 30 November, 2006.

    (b)A copy of the Psychiatric Report prepared by Dr K for the wife.

    (c)A copy of the Psychiatric Report, when completed, for the husband.

13. That the husband and the wife authorise G Centre to release all reports and other documents prepared by G Centre including but not limited to reports prepared in relation to time spent by the wife with the children and confer directly with the Independent Children's Lawyer on all questions relating to the children's health and welfare.

14. Liberty to apply.

15. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3575  of 2005

Mr Andrews

Applicant

And

Ms Mawson (formerly Andrews)

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me in the Standard Track List of defended cases and concerns the welfare of two children, A, who was born in January 1994 and D who was born in August 1995. 

2. The parties married in April 1993 and following a period of disharmony between them, finally separated in June 2005.  There was a high level of conflict between the parents which is evidenced in their various affidavits of evidence‑in‑chief filed in the proceedings.  I have had the advantage of reading the further affidavits relied upon by each of them together with the family report of Mr N dated 30 November 2006, together with that of Dr Y dated 27 January 2006 and two reports of Dr G.

3. The report of Mr N was one that revealed with stark clarity the problems in this case, and in particular those exposed in paragraphs numbered 71-85 (inclusive).  I do not propose to repeat those paragraphs in this short judgment for they are well known to the parties, and it is sufficient for me to say that they reveal quite a disturbing situation.  The proceedings commenced on 13 March 2007 and stood down for discussion.  By the end of the day the matter had been resolved in part.  Despite an application that was made by Mr Kounnas to adjourn the matter this day, which I rejected, the parties continued their negotiations at a high level of intensity and at arms length.

4. I greatly respect the genuineness in which the parties have approached the negotiation process.  Yesterday, I did contemplate that the parties should entertain final orders.  However, this is unable to be achieved at this stage and for very good reasons.  What is valuable in this adjustment on an interlocutory basis is that the proposal is to move forward in a meaningful and appropriate way so as to enable the two children to enjoy their right to have a relationship with their mother, one which they have been denied now for a long time.

5. The orders endorse a process designed to repair the past and move to the future.  It is one that provides for the parties attending upon professional advisers for the benefit of both themselves and more importantly, the children.  It involves the use of the organisation "[S]" for therapeutic mediation and joint counselling.  This is a clever and insightful way of advancing into the future.  It is going to be difficult for the children and will mean that they will be looking to their father for encouragement in the process.  I have every expectation that the father will encourage them and address them positively of the advantages of the process about to be undertaken.

6. I appreciate that that will require great discipline within their family unit and the ability to sublimate feelings of the past, or hurt or pain, for the benefit of the two children.  What I am pleased about is that each of the parties are seeking greater understanding by recourse to professional assistance.  This is a positive move forward and appears to me to be sensibly ordained in these orders.  It will return to me at 9.30 am on 26 October 2007 for mention only.  I expect that there will be a substantial move forward, albeit it will be a tough road down which to travel.

7. What I propose to do is direct that a transcript of my comments yesterday afternoon be made and placed on the court file together with the submissions made by counsel this day be made and be available to the parties.  That will ensure that if some event causes me to be elsewhere than in Melbourne on 26 October 2007, my successor will have a full understanding of the hard road travelled, if I may put it that way, by the parties in coming to this arrangement. 

8. I make orders as proposed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  30 March 2007.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ANDREWS & MAWSON