Arman and Arman

[2007] FamCA 621

FAMILY COURT OF AUSTRALIA

ARMAN & ARMAN [2007] FamCA 621

FAMILY LAW - CHILDREN - With whom a child spends time - Variation of orders - Interim

APPLICANT: MR ARMAN

RESPONDENT: MRS ARMAN

INDEPENDENT CHILDREN’S LAWYER: MR SALCE

FILE NUMBER: MLC 3450 of 2007

DATE DELIVERED: 5 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 5 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Neill

SOLICITOR FOR THE RESPONDENT: Mr Ballan

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Orders

1. That until further order the parties, their servants or agents be restrained from:-

(a)     Denigrating the other within the presence or hearing of the children Son G born … November 1995 and Son E born … June 1998 (“the children”);

(b)    Discussing these proceedings within the presence or hearing of the children.

1. That the parties and the children attend upon a psychologist nominated by the Independent Children’s Lawyer (“ICL”) for the purposes of a family report, and the cost of such report, subject to Victoria Legal Aid funding be shared equally between the parties

1. That without admitting the necessity for such an order the Husband attend and complete a parenting course nominated by the ICL.

1. That all extant applications be adjourned to the Senior Registrar’s List on 30^th July 2007 at 9.45am.

1. That paragraph 1(a) of the orders made 26^th April 2007 be varied to provide that the Husband’s time with the children on Monday be substituted to each Thursday from 4.30 to 7.30pm.

1. That the Husband spends further time with the children as follows:-

(a)     On 10^th June 2007 from 5pm to 10.30pm;

(b)    On 16^th June 2007 from 4.30pm to 10.30pm.

1. The Husband file and serve his Form 13 Financial Statement and any further responding material within 21 days.

1. 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.

Notation

1. That the Husband sought outright contact with the children but the decision was deferred until after the Family Report.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3450  of 2007

MR ARMAN

Applicant

And

MRS ARMAN

Respondent

REASONS FOR JUDGMENT

1. In this case it is agreed between the parents and the independent children's lawyer that there should be a Family Report, and that the case should return to court in six or so weeks.  I need to decide the arrangements for the children for that short time.

2. The parents separated about five months ago.  The father is currently seeing the parties' 11‑year‑old and nine‑year‑old sons for three hours on Monday after school, three hours on Tuesday after school, and for about six and a half hours on a Sunday.  He ultimately wants a shared care arrangement but in the very short term he is seeking Friday overnight time with the boys. 

3. Mr O’Neill, Counsel for the father refers me to Goode & Goode [2006] FamCA 1346, the decision of the Full Court handed down at the end of 2006 in relation to the impact of the Family Law Amendment (Shared Parental Responsibility) Act on interim proceedings.  In particular, Mr O'Neill relies on the provisions of the legislation referring to the need for the court to ensure “a meaningful relationship” between parents and children. 

4. The mother raises a number of allegations at this point to the effect that the father has not been involved in the day‑to‑day care of the children, that he failed to take one boy to football training on one occasion when he was spending time with the children, and he failed to complete homework and give the boys dinner.  She raises a concern about alcohol abuse on the father's part, and that the children have witnessed violence directed towards her by their father.  She has a current intervention order against the father.  She alleges there have been breaches of the order.  She alleges that he denigrates her in front of the boys.  And, she is concerned about his current accommodation arrangements. 

5. The father disputes many of the matters raised by the mother and they remain issues that need to be tested in front of the court.

6. The Independent Children’s Lawyer (ICL) has proposed today that the current arrangements should continue until such time as the family report is available. 

7. The Full Court in Goode's case recognised that the scope of the inquiry at this stage is significantly curtailed - and the more so when there is a very brief period of an adjournment involved.  The Full Court also recognised that, although Cowling's case had previously directed a trial Judge at this interim stage to take into account the status quo, and only to alter it if there were a particular concern about the safety of the children, Cowling is not good law since the legislative scheme has changed.   However, status quo is still part of the considerations for the court in looking at what to do for children during a short adjournment. 

8. Section 60CC of the Family Law Act now directs me to the matters to be taken into account. Section 60CC(2)(a) deals with the issue of a meaningful relationship between parents and children. Naturally I do take that into account, at least so far as I am able with the limited information before me. Section 60CC(2)(b) refers to the need to protect children from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.

9. They are matters that I cannot make any determination about today.  They are one of the reasons why it is particularly important for me, or for whoever hears the case next, to have the assistance of a family report where not only the parents' perspectives are put but, most importantly, the children have been interviewed so that how they are faring can be taken into account.  The children's views will be something that will be gauged through that family report, as will the nature of the relationship, as well as the matters that each parent wants to raise. 

10. At present there is such limited information that my concern is that if I were to alter the current arrangements they are simply arrangements that might need to be altered again and I do not think that is in the children's best interests.  There is nothing in the new provisions that precludes me from putting the aspect of stability to the fore when looking at the children's best interests at such an early stage with such limited material. 

11. The children are seeing their father three times a week.  That is very important.  That enables the relationship to be continuing, and of course it is my hope and expectation that unless there is some reason to the contrary, the likely course is that when the matter returns to court the children's time with their father will be extended so that they have the benefit of seeing as much as possible of both of their parents, who are likely to be very important to them.  But I cannot pre‑empt that.

12. The orders I shall make are as follows:

1.      That until further order the parties, their servants or agents be restrained from:-

(a)    Denigrating the other within the presence or hearing of the children [Son G] born [...] November 1995 and [Son E] born [...] June 1998 (“the children”);

(b)    Discussing these proceedings within the presence or hearing of the children.

2.      That the parties and the children attend upon a psychologist nominated by the Independent Children’s Lawyer (“ICL”) for the purposes of a family report, and the cost of such report, subject to Victoria Legal Aid funding be shared equally between the parties

3.      That without admitting the necessity for such an order the Husband attend and complete a parenting course nominated by the ICL.

4.      That all extant applications be adjourned to the Senior Registrar’s List on 30^th July 2007 at 9.45am.

5.      That paragraph 1(a) of the orders made 26^th April 2007 be varied to provide that the Husband’s time with the children on Monday be substituted to each Thursday from 4.30 to 7.30pm.

6.      That the Husband spends further time with the children as follows:-

(a)    On 10^th June 2007 from 5pm to 10.30pm;

(b)    On 16^th June 2007 from 4.30pm to 10.30pm.

7.      The Husband file and serve his Form 13 Financial Statement and any further responding material within 21 days.

8.      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.

Notation

1.      That the Husband sought outright contact with the children but the decision was deferred until after the Family Report.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  5 June 2007

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