Bailey and Dennis

[2007] FamCA 438

FAMILY COURT OF AUSTRALIA

BAILEY & DENNIS [2007] FamCA 438

FAMILY LAW - CHILDREN - With whom a child shall live - With whom a child shall spend time - Interim

APPLICANT: BAILEY  

RESPONDENT: DENNIS

FILE NUMBER: MLC 2122 of 2007

DATE DELIVERED: 22 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 22 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr I.G. McKechnie

COUNSEL FOR THE RESPONDENT: Ms H. Dellidis

Orders

1. That until further order the child a son born in December 2000 shall:

2. Live with the father:

   (a)From the conclusion of school Friday until the commencement of school Monday each week during school term;

   (b)From 8.00am until the commencement of school each Wednesday during school term;

   (c)For one half of the forthcoming school holidays at times to be agreed;

3. Live with the mother at all other times.

4. That until further order the mother shall be and is hereby restrained from:

   (a)Consuming any alcohol whilst the child is in her care; and

   (b)Consuming any prescription drugs except strictly in accordance with a prescription.

5. That until further order paragraphs 6, 7 and 8 of the orders made on 8 March 2007 shall continue in full force and effect.

6. That pursuant to s 68L(2) of the Family Law Act the child a son born in December 2000 shall be separately represented and that Victoria Legal Aid is requested to arrange such representation.

7. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer shall file a Notice of Address for service.

8. That within 48 hours of notification of such appointment the solicitors for the respective parties shall provide to the independent children’s lawyer copies of all relevant documents relied upon.

9. That the mother shall undergo a psychiatric assessment by a psychiatrist for the purposes of the preparation of a psychiatric report at the mother’s expense, such psychiatrist to be agreed between the parties and in default, to be nominated by the Independent Children’s Lawyer AND IT IS REQUESTED that Victoria Legal Aid extend assistance to the mother for the cost of the report.

10. That the parties shall do all things necessary to facilitate the preparation of a Family Report by a Family Consultant to be appointed by the Court’s Counselling Service, such report to be released 21 days prior to the final hearing.

11. That the applicant and the respondent shall file and serve Trial Affidavits by 4 June 2007.

12. That the matter shall be fixed for a three day final hearing as a priority matter, commencing 18 June 2007.

13. That the matter shall be listed for a Pre-Trial Conference at 11.00am on 6 June 2007 to ensure the matter is ready to proceed on 18 June 2007.

AND THE COURT NOTES

1. It is requested that Victoria Legal Aid appoint the Independent Children’s Lawyer as soon as possible in view of the final hearing fixed to commence on 18 June 2007.

2. The parties have agreed the child shall spend time with the mother from 10.00am until 4.00pm Mother’s Day.

3. The parties have agreed that the forthcoming school holidays shall be divided as follows:

   (a)With the father from after school Friday 30 March 2007 until 11.00am Saturday 7 April 2007;

   (b)With the mother from 11.00am Saturday 7 April 2007 until 11.00am Saturday 14 April 2007;

   (c)With the father from 11.00am Saturday 14 April 2007 until the commencement of school Monday 16 April 2007.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2122  of 2007

BAILEY

Applicant

And

DENNIS 

Respondent

REASONS FOR JUDGMENT

1. This case is about the arrangements for a six‑year‑old child for the next 12 weeks or so until the case comes on for hearing.  We have been lucky enough to secure a date today for the hearing in its entirety, because one of the central issues is whether or not the mother should be able to relocate him a couple of hours from Melbourne, and her partner has already left for that region, and she is keen to follow. 

2. As to the brief background, the parties separated some years ago and until recently they have made their own arrangements without the need for any litigation.  The child has lived with his mother and her partner, and spent time with his father and his partner on alternate weekends and two mornings per week when the father has taken him to school and during school holiday and other special occasion time.  The parties currently live very close by, and so those arrangements have been possible and practicable.

3. I cannot deal with this short interim period without reference to one recent event.  If not for it, the answer as to what should happen in the next 12 weeks would be very simple: the status quo should prevail given that it is a long-standing arrangement.  But on 22 February this year, at about 3.00am the mother rang the father and asked him to collect the child, before she was taken by ambulance to Hospital.  When she was released at 6.35 am, some three or so hours after being taken to hospital, her blood alcohol reading was .12 per cent. 

4. In her initial affidavit about this incident the mother said she was taken to hospital with “chest pains”.  Her counsel today says there was a typographical error, and "chest pains" should have read "leg pains".  I am not going to get to the bottom of that today, but I do note that in her subsequent affidavit she referred to “cramping” rather than pains.  And then the hospital records suggest that she told the ambulance people a different version altogether, of having taken 40 Valium tablets and drunk six cans of beer, intending to sleep. 

5. This incident rings alarm bells, and those alarm bells are not silenced when I look at a history where there has been some suggestions of alcohol abuse, and some mental health issues in the past, in 2003 or 2004, and given that the mother in her current material - and I cannot make definitive findings - might not be addressing these particular issues. 

6. In fairness, I note that the mother was released from hospital very quickly.  And I note that, even in the father's proposed arrangements today as to what should happen in the next 12 weeks, he is proposing that the child shall live with his mother from after school Monday until Wednesday each week and from the conclusion of school on Friday until 7 pm.  He says that his main concern is the weekend time.  That is when he has been worried that the son was at particular risk. 

7. The father says that the mother should be restrained from drinking alcohol when the child is with her and restrained from using any drugs except strictly in accordance with a prescription.  It is very hard to argue against those two interim orders so that the court has the assurance of the utmost protection for the child, without forming any views as to whether that protection ultimately is or is not considered to be necessary. 

8. The mother says that for the interim period, the father could have the weekends with the child because in that way the child would be kept in his normal school routine with her during the week, she could spend the weekends in the country with her partner - which would no doubt ameliorate the genuine difficulties of having to live separately at this point - and the child could be dropped back at school by his father on Mondays so that the father has contact with the school.

9. To make this short term decision, the paramount consideration for me is the child's best interests.  Stability for him is an important consideration, but following the recent Full Court decision in Goode's case, it is not simply a matter of saying that the status quo must be maintained.  Stability is one of the factors to take into account in determining what is in the child’s best interests. 

10. The primary considerations for me under the Family Law Act cover a meaningful relationship for the child with both parents, and the safety of the child to ensure that he is not at risk.  If I balance those primary considerations and take into account, such as I can at this early stage, the various additional considerations, in terms of the parents' capacities and what has happened until this date and what each of them is saying today, my conclusion is that the child’s best interests would be served by staying with his mother at the moment during the week.  That way he can maintain his normal routine and stability, with the safeguards I have referred to above, and be with his dad each weekend.

11. I am satisfied his father should drop him back at school on the Monday but I am going to add that his father can take him to school one other morning during the week.  That is just another safety or checking measure, which might not be needed ultimately, but I am going to err on the side of caution when I have so little material at this stage.  Wednesday is the day that springs to mind, but you can talk about that. 

    DISCUSSION IN RELATION TO THE ORDERS

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  22 March 2007

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